Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada 9780773562547

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Native Liberty, Crown Sovereignty

McGill-Queen's Native and Northern Series Bruce G. Trigger, Editor 1 When the Whalers Were Up North Inuit Memories from the Eastern Arctic Dorothy Harley Eber 2 The Challenge of Arctic Shipping Science, Environmental Assessment, and Human Values David L. VanderZwaag and Cynthia Lamson, Editors 3 Lost Harvests Prairie Indian Reserve Farmers and Government Policy Sarah Carter 4 Native Liberty, Crown Sovereignty The Existing Aboriginal Right of Self-Government in Canada Bruce Clark

Native Liberty, Crown Sovereignty The Existing Aboriginal Right of Self-Government in Canada BRUCE CLARK

McGill-Queen's University Press Montreal & Kingston • London • Buffalo

McGill-Queen's University Press 1990 ISBN 0-7735-0767-1 Legal deposit fourth quarter 1990 Bibliotheque nationale du Quebec

Printed in Canada on acid-free paper Reprinted twice 1991 This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada.

Canadian Cataloguing in Publication Data Clark, Bruce A., 1944Native liberty, crown sovereignty (McGill-Queen's series in native and northern studies; 4) Includes bibliographical references. ISBN 0-7735-0767-1 1. Indians of North America—Canada—Politics and government—History. 2. Indians of North America—Canada—Legal status, laws, etc.— History. 3. Indians of North America—Canada— Government relations—History. I. Title II, Series. E92.C551990 342.71'0872 C90-090325-2

Typeset in 10 on 12 Baskerville by Nancy Poirier Typesetting Ltd., Ottawa, Ontario.

To Mother and Margaret

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Contents

Table of Legislation ix Table of Cases xv Acknowledgments xxiii Preface xxv INTRODUCTION 3 1 C O M M O N LAW OF S E L F - G O V E R N M E N T 11

Domestic Common Law 12 Constitutional Common Law 37 2 THE PREROGATIVE LEGISLATION 58

Subordination and Delegation Principles 58 Royal Commissions, Instructions, and the Proclamation of 1763 70 3 C O N T I N U I T Y 84

Non-Repeal of the Prerogative Legislation 85 Positive Re-enactment: The Indian Territories Statutes 98

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4 DISCONTINUITY: THE ANTI-THESIS 124

The Crimes and Offences Exception 124 Responsible Government, and Enclaves 131 5 LAW REFORM AND THE N E G O T I A T I O N PROCESS 147 C O N C L U S I O N 191

Appendix: Constitutional Milestones 205 Bibliography 219 Index 249

Table of Legislation

The legislation listed below is in chronological order. See also the appendix, "Constitutional Milestones." Royal Instructions to the Several colonial Governments, 1670 ... 76, 82, 205 An Act for Preventing Frauds, and Regulating Abuses in the Plantation Trade, 7 & 8 Wm. in, c. 22 (1696) . . . 69, 122, 205 Royal Declaration of Colonial Government Rank and Precedency, 1760 . . . 60 Royal Proclamation of 1763 ... 7, 8, 12, 17, 23, 27, 36, 37, 38, 45-7, 56-7, 62, 66, 67-8, 72-5 , 77, 79, 80, 83, 84, 85, 86, 88, 89, 90, 93, 94, 95, 96, 97, 99, 101, 106n49,107,110,118,120, 121,122,125,133,134-7,139,141,143, 145,147, 162-3, 164,165,169,181,196, 202, 204, 205, 206, 207, 208, 212, 216 Royal Commission of Governor Murray of Quebec, 1763 . . . 77 Royal Instructions to Governor Murray of Quebec, 1763 . .. 77, 93, 208 Royal Proclamation of 1764 (Grenada) . . . 46 An Act for the Better Securing the Dependency of His Majesty's Dominions in "America" upon the Crown and Parliament of "Great Britain," 6 Geo. m, c. 12 (1766) . . . 69, 206 Carleton Proclamation, 1766 . .. 92nll, 99, 122 Royal Commission of Governor Carleton of Quebec, 1768 . . . 77 Royal Instructions to Governor Carleton of Quebec, 1768 . . . 77, 93 Royal Instructions of the Commander in Chief of His Majesty's Forces, 1768 ... 78, 206 Royal Instructions Endorsing a Representation of the Lords of Trade, 1768 ... 99, 206 Order in Council Sustaining a Report of a Board of Review of a Decision of Board of Enquiry into Complaints of the Mohegan Indians, 1773 . . . 44

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Table of Legislation

An Act for Making More Effectual Provision for the Government of the Province of Quebec in North America, 14 Geo. ill, c. 83 (1774) . .. 86-98, 100,105,122-3,125,162,165, 206, 207 Royal Instructions of Governor Carleton of Quebec, 1775 . . . 78-9 An Ordinance for Establishing Courts of Civil Judicature in the Province of Quebec, 17 Geo. HI, c. 1 (1777 Que.) . . . 39 An Ordinance to Prevent the Selling of Strong Liquors to the Indians in the Province of Quebec, as also to Deter Persons from Buying Their Arms or Clothing, and for Other Purposes Relative to the Trade and Intercourse with the Said Indians, 17 Geo. HI, c. 7 (1777 Que.) . . . 92, 99, 155, 206 Royal Instructions to Governor Haldimand of Quebec, 1778 . . . 79 Royal Commission of Sir William Johnson, Superintendent of Indian Affairs, 1783 ... 79 Subordinate Instructions to Sir William Johnson, Superintendent of Indian Affairs, 1783 .. .79 Royal Instructions to Governor Carleton of Quebec, 1786 . . . 39, 79 United States Constitution, 1789, as amended . . . 20, 191 Constitutional Act, 1791 . . . 39, 100, 105, 117n80, 122-3, 207, 208 An Act to Establish a Superior Court of Civil and Criminal Jurisdiction, and to Regulate the Court of Appeal, 34 Geo. m, c. 2 (1794) . . . 39 An Act for Extending the Jurisdiction of Justice in die Provinces of Lower and Upper Canada to the Trial and Punishment of Persons Guilty of Crimes and Offences within Certain Parts of North America, 43 Geo. in, c. 138 (1803).... 100,104,122-3,124-8, 207, 213, 214, 216 Governor's Proclamation by Isaac Brock, President Administering the Government of Upper Canada, 1812 . . . 92 Royal Proclamation of 1817 ... 101, 122-3, 207 Maitland's Proclamation, 1820 . . . 102, 207 An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America, 1 & 2 Geo. m, c. 66 (1821) . . . 102-3,104, 122-3,124-8, 207, 213, 214, 216 An Act the Better to Protect the Mississauga Tribes Living on the Indian Reserve of the River Credit, in Their Exclusive Right of Fishing and Hunting Therein, s. Prov. u.c. 1829, c. 3 ... 19, 155 An Act for the Protection of the Lands of the Crown in This Province from Trespass and Injury, s. Prov. u.c. 1839, c. 15 ... 138, 155 Union Act, 1840 . . . 39, 103, 105, 117n80, 122-3, 138-9, 141n53, 208 An Act to Explain and Amend an Act of Parliament of the Late Province of Upper Canada, Passed in the Second Year of Her Majesty's Reign, Intituled "An Act for the Protection of the Lands of the Crown in this Province from Trespass and Injury," and to Make Further Provision for That Purpose, S. Prov. c. 1849, c. 9...138, 155

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Table of Legislation

An Act to Make Further Provision for the Administration of Justice, by the Establishment of an Additional Superior Court of Common Law and also a Court of Error and Appeal, in Upper Canada, and for Other Purposes, s. Prov. C. 1849, c. 63 ... 39 An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada, S. Prov. C. 1850, c. 42 ... 155 An Act for the Protection of the Indians in Upper Canada from Imposition, and the Property Occupied or Enjoyed by Them from Trespass and Injury, S. Prov. c. 1850, c. 74 ... 138, 140, 155 An Act to Authorize the Setting Apart of Lands for the Use of Certain Indian Tribes of Lower Canada, s. Prov. C. 1851, c. 106 ... 155 Consolidated Assessment Act of Upper Canada, s. Prov. c. 1853, c. 182 ... 141 An Act to Empower the Legislature of Canada to Alter the Constitution of the Legislative Council for that Province, and for Other Purposes, 17 & 18 Viet., c, 118(1854) ...103 An Act to Encourage the Gradual Civilization of the Indian Tribes in this Province, and to Amend the Laws Respecting Indians, S. Prov. c. 1857, c. 26... 19,138,152, 155,192,194-5 An Act to Provide for the Government of British Columbia, 21 & 22 Viet., c. 99 (1858) . . . 77,103,122-3, 208 Royal Commission of Governor Douglas of British Columbia, 1858 ... 77, 208 Royal Instructions to Governor Douglas of British Columbia, 1858 .. . 105 An Act to Make Further Provision for the Regulation of the Trade with the Indians, and for the Administration of Justice in the North-Western Territories of America, 22 & 23 Viet., c. 26 (1859) .. . 104-5, 122-3, 208 An Act Respecting the Civilization and Enfranchisement of Certain Indians, esc 1859, c. 9 ... 19, 138, 155 An Act to Prevent Trespass on Public and Indian Lands, csuc 1859, c. 81 ... 138,140,155 An Act Respecting Indians and Indian Lands, S. Prov. C. 1860, c. 2 . . . 155 An Act Respecting the Management of the Indian Lands and Property, s. Prov. c. 1860, c. 151 ... 138,140,155, 208 Stickeen Order in Council (UK) 1862 . . . 105 An Act to Define the Boundaries of the Colony of British Columbia; and to Continue an Act to Provide for the Government of the Said Colony, 26 & 27 Viet., c. 83 (1863) . . . 105, 122-3, 208 Royal Commission of Governor Seymour of British Columbia, 1864 . . . 62, 77, 105, 208 An Act to Remove Doubts as to the Validity of Colonial Laws, 28 & 29 Viet., c. 63 (1865) . . . 72-4,101,121,122, 207, 208 Constitution Act, 1867 (BNA Act) . . . 20-1, 50-2, 58, 84, 105-23,131, 134, 139n48, 143, 144, 145, 188,192, 204, 209, 210, 211, 212, 216

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Table of Legislation

Rupert's Land Act, 1868 . . . 110 An Act Providing for the Organization of the Department of the Secretary of State of Canada, and for the Management of Indian and Ordnance Lands, SC 1868, c. 42 ... 136n38, 140, 154-5, 209 Assessment Act, SO 1868-69, c. 36 ... 141 Statutes Law Revision Act, 1868-69, RSO 1970, appendix . . . 165 An Act for the Temporary Government of Rupert's Land and the NorthWestern Territory when United with Canada, SC 1869, c. 3 ... Ill, 122-3 An Act for the Gradual Enfranchisement of Indians, the Better Management of Indian Affairs, and to Extend the Provisions of the Act, 31 Viet. c. 42, SC 1869, c. 6 .. . 106n49 Rupert's Land and North-Western Territory Order, 1870 . . . 112, 122-3, 209-10 Manitoba Act, 1870 . . . Ill, 114n67, 116, 122-3, 210 British Columbia Terms of Union, 1871 . .. 114-16, 120, 122-3, 131, 210-11 Constitution Act, 1871 . . . 107, 113-14, 117, 118, 122-3, 210, 211, 212, 213 Prince Edward Island Terms of Union, 1873 ... 116, 122-3 An Act to Amend and Consolidate the Laws Respecting Indians, SC 1876, c. 18 .. .120, 136n38, 140, 141,154-6, 209, 211 Assessment Act, RSO 1877, c. 180 ... 141 Adjacent Territories Order, 1880 . . . 117, 122-3, 211-12 An Act to Amend and Consolidate the Laws Respecting Indians, sc 1880, c. 28 ... 140,141,156 The Indian Advancement Act, 1884, SC 1884, c. 28 ... 154n9, 156 Indian Act, RSC 1886, c. 43 ... 140, 141, 156 Assessment Act, RSO 1887, c. 193 . . . 141 The Canada (Ontario) Boundary Act, 1889 . . . 118 An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario Respecting Indian Lands, SC 1891, c. 5; so 1891, c. 3 . . . 119, 212 Assessment Act, RSO 1897, c. 224 . . . 141 The Yukon Territory Act, 1898 . . . 117, 122, 213 An Act Respecting the North-Western, Northern and North-Eastern Boundaries of the Province of Quebec, SC 1898, c. 3 ... 118 Alberta Act, 1905 . . . 117, 122, 213 Saskatchewan Act, 1905 . . . 117, 122, 213 Indian Act, RSC 1906, c. 81 ... 140, 141, 156 Ontario Boundaries Extension Act, 1912 ... 118, 122, 213 Quebec Boundaries Extension Act, 1912 . . . 118, 122, 213 Manitoba Boundaries Extension Act, 1912 ... 119 An Act to Amend the Indian Act, SC 1919-1920, c. 50 ... 157 Act of June 2,1924 (u.s.) ch. 233, 43 Stat. 253 ... 20

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An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario, SC 1924, c. 48 ... 120, 139, 213 Indian Act, RSC 1927, c. 98 ... 140,141, 156 Constitution Act, 1930 . . . 107, 119, 120, 122, 128, 213, 214, 216 Manitoba Boundaries Extension Act, 1930 .. .118 Statute of Westminster, 1931 . .. 106-8, 114, 121, 122, 198, 209, 210, 211, 212, 214,216 An Act to Amend the Indian Act, SC 1932-33, c. 42 ... 157 Indian Reorganization Act, ch. 576, 48 Stat. 987 (1934); codified (as amended) at 25 use 461-79 (1982) . .. 26-7 Assessment Act, RSO 1937, c. 272 . . . 141 Newfoundland Act, 1949 . . . 121,122, 214 Assessment Act, RSO 1950, c. 24 ... 141 The Indian Act, sc 1951, c. 29 ... 35,127, 156-7,177, 207, 213, 214 Indian Act, RSC 1952, c. 149 ... 127, 140, 141, 156-7 Assessment Act, RSO 1960, c. 23 ... 141 Canadian Bill of Rights, 1960 . . . 20-21 Canada Elections Act, sc 1960, c. 7 . .. 195, 214 Assessment Act, RSO 1970, c. 32 ... 141, 168 Indian Act, RSC 1970, c. 1-6 . .. 8, 17, 26, 27n48, 35, 108, 127, 136-7, 140, 141, 145, 156-7, 169, 170,177, 182-3, 184, 199nl8, 207, 214 James Bay and Northern Quebec Native Claims Settlement Act, 1977 . . . 167, 215 Indian Band Council Procedure Regulations, CRC 1978, c. 950 . .. 156 Indian Band Election Regulations, CRC 1978, c. 952 . . . 156 Indian Referendum Regulations, CRC 1978, c. 957 .. . 156 Canada Act, 1982 . . . 26, 83, 122 Constitution Act, 1982 . . . 4-7, 25-7, 32, 33, 34, 35, 56-7, 58, 59, 85, 86, 107-8, Illn58, 112n59, 113n63, 114n65, 116n73, 117n78, 117n81, Il7n82, 119n88, 121, 122, 128n7, 131nl9, 130, 145, 166, 169, 172n67, 181, 182-3, 185-6, 189, 195, 198, 200-4, 210, 211, 212, 214, 216 Constitution Amendment Proclamation, 1983 . . . 179, 216, 217 Cree-Naskapi (of Quebec) Act, 1984 ... 167, 217 Indian Self-Government Act, 1984, Bill c-52 . . . 169, 217 Federal Court Act, 1985 . . . 53nl31, 55nl39 Sechelt Indian Band Self-Government Act, SC 1986, c. 27 ... 168, 169, 171, 215,217 An Act to Amend the Indian Act and Another Act in Consequence Thereof, Bill c-115, first reading March 9, 1988 . . . 177, 217-18

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Table of Cases

Abeyesekerav.Jayatilake, [1932] AC 260 (PC) . . . 85 Amodu Tijaniv. Secretary, Southern Nigeria, [1921] 2 AC 399 (PC) . . . 31, 139, 140 AC Can. v. AC Ont., [1897] AC 199 (PC) . . . 44, 50-2, 56,110,133-4,140,143, 144,192, 212, 215, 216, 217 AC, Can. v. Canard, [1976] 1 SCR 170 ... 20, 22, 208, 213, 216 AG Ont. v. Bear Island Foundation (1984), 49 OR (2d) 353 (HC), affd (1989), 68 OR (2d) 394 (CA) . . . 57nl46, 89-98, 107n51,132,137,142,144,145, 161,165,194,218 AC Ont. v. Francis [1889], Archives Ontario, Irving Papers, box 43, file 42, item 9 (Ont. HC) . . . 137, 140, 141 AG Ont. v. Price (1868), 15 Ch. 304 (Ont.) . . . 140 AC Que. v. AG Can. (1920), 56 DLR 373 (sec) . . . 139 AC Que. v. AC Can., [1921] AC 410 (pc)B . . . 118,139 ReBeaulieu'sPetition (1969), 67 WWR 669 ... 18 Re Bell (1977), 16 OR (2d) 197 (sc) . . . 130 Bourn v. West (1846), 1 Grant's E & AR 117 (Ont.) . . . 23, 140 Blackfoot Indian Band No. 146 (Members) v. Canada (1986), 5 FTR 23 . . . 55 Brick Cartage Ltd. v. n, [1965] 1 Ex. CR 102 ... 85, 120, 137, 140, 141 Burkev. Cormier (1890), 30 NBR 142 ... 75 Buronv. Denman, [1848] 2 Exch. 167 ... 63 Calderv. AcforBC, [1973] SCR 313 ... 5, 27, 31, 49nl22, 62, 64-5, 71-3, 75, 81, 85, 89, 115n71, 131-2, 134, 139, 140, 141, 142, 159, 194, 214-15 Californiav. Cabazon Band of Mission Indians, 107 sCt 1083 (1987) . . . 16 Calvin's Case (1608), 77 ER 377 ... 47 Camewnv. Kyte (1835), 12 ER 679 ... 37, 45, 48-50, 52, 56, 207 Campbell v. Hall (1774), 98 ER 848 ... 19, 37, 45-8, 50, 52, 56, 63, 66, 162 Campbellv. Sandy, [1956] OWN 441 (cc) ... 129 Canadav. Ontario, [1910] AC 637 (PC) . . . 137 Canardv. AG Can., [1972] 5 WWR 678 (Man CA) . .. 140

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Canatonquinv. Gabriel, [1980] 2 FC 792 (CA) . . . 53, 181 Cardinal v. AG A/to, [1974] SCR 695 ... 23, 134, 135-7, 141, 142,146, 212, 215 Central Machinery Co. v. Arizona State Tax Commission, 448 U.S.. 160

(1980) . . . 16, 17 Cherokee Nation v. Georgia, 5 Peters 1 (1831) . . .16, 20 Cherokee Nation v. Southern Kansas Ry. Co.,135 u.s. 641 (1890) . . . 17 Chociaw Nation v. as., 119 U.S. 1 (1886) .. .16 Churchy. Fenton (1878), 28 UCCP 384, affd (1879), 4 OAR 159, afFd (1880) 5 SCR 239 ... 103, 137, 140 Claxtonv. Saanichton Marina Ltd., (1987) 4CNLR48 (BCSC) . . .5 Colemanv. Tish-Ho-Mah, 4 Smedes & M 40 (Miss. HC of E & A, 1844) . . . 16 Colliflowerv. Garland, 342 F 2d 369 (9th Cir., 1965) . . . 180 Connollyv. Woolrich (1867), 11 LCJ 197 (Que.) .. .13-19, 28 Connollyv. Woolrich (1869), 1 RLOS 253 (Que. CA) . . .17-19 Cornetv. Winton, 2 Yerg. 129 (Tenn. CA, 1826) .. .16 Ex Parte Cote (1971), 5 ccc (2d) 49 (Sask. CA) . .. 18 County ofOneidav. Oneida Indian Reservation, 105 s Ct 1245 (1984) . . . 16 Croftv. Dunphy,[1933] AC 156 (PC) . . . 54 Ex Parte Crow Dog, 109 u.s. 556 (1883) . . . 16 Davey v. Isaac (1977), 77 DLR (3d) 481 (sec) . . . 156 ReDeborah, [1972] 5 WWR 203 .. . 18 Dickv. R, [1985] 2 SCR 309 . . .128 Dohertyy. Giroux (1915), 24 QKB 433 (CA) . . . 137, 139 Doneganiv. Donegani (1835), 1 LRAC 50 (PC ) ... 19 Earl of Antrim's Petition, [1967] AC 691 ... 164 Easterbrookv. a, [1931] SCR 210 ... 85 Feganv. McLean (1869), 29 UCQB 202 ... 23, 140 Fellows v. Denniston, 23 NY 420 (CA, 1861) . . . 16 Finlayv. Canada [1986] 2 SCR 607 ... 55 Fisherv. District Court, 424 u.s. 382 (1976) . . . 16 Fort Alexander Indian Band v. Canada (1988), 19 FTR 315 ... 55 FourB. Manufacturing Ltd. v. United Garment Workers of America (1979), 30 NR 421 (sec) ... 23, 134, 137 Geoffriesv. WiUiams (1959), 16DLR (2d) 157 (ucCo. Ct) . . . 115 Gibbv. White (1870), 5 Practice R 315 (Ont.) . . . 19 Goodellv. Jackson, 20 Johnson R. 693 (NvCtE, 1823) . . . 20 Grand Trunkv. Robertson, [1909] AC 325 ... 164 Guerinv. R., [1984] 2 SCR335 . . . 5, 28, 31,160 Hamlet of Baker Lakev. Min. oflnd. Aff. (1979), 107 DLR (3d) 513 (TC) . . . 75 Harcourtv. Gaillard, 12 Wheat. 523 (1827) . . . 76 Hodelv. Irving, 107 s Ct 2076 (1987) . . . 16 Holdtnv.foy, 84 u.s. 211 (1872) ... 16 Holland v. Pack, 8 Martin & Yerger 119 (sc Tenn., 1823) . . . 20

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Table of Cases

The India (1865), 12 LTNS 316 ... 164 Re Indian Claims: An Arbitration Award, Public Archives Canada, Record Group 10, vol. 2546, file 111834, pt. 1, at 13 ... 29-30 Idaho (State) v. Coffee, 56 p 2d 1185 (1976) . . . 57, 97 Iowa Mutual Ins. Co. \. Laplante, 107 s Ct 971 (1987) . . . 16 Isaacv. Davey (1974), 5 OR (2d) 610 (CA) . . . 23,137,139,140,141 Jack v. K., [1985] 2 SCR 332 ... 128 Jacksonv. Wilkes (1835), 4 UCR 142 ... 23, 140 Joev. Canada, [1986] 2 SCR 145 ... 55 Johnsonv. Mdntosh, 8 Wheat. 543 (1823) . . . 16, 76 Johnstonev. Pedlar, [1921] 2 AC 262 ... 63 Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F 2d 370 (1st Cir., 1975) . . . 2 5 Re Kansas Indians, 72 U.S. 737 (1866) . . . 16 Re Katie's Adoption Petition (1961), 38 WWR 100 . . . 18 Kennerlyv. District Court, 400 U.S. 423 (1971) . . . 16 Kerr-McGee Corp. v. Navajo Tribe, 105 s Ct 1900 (1985) . . . 16, 25 Kielleyv. Carson (1843), 3 Moo. PC 63 ... 33 Kimballv. Callahan, 590 F 2d 768 (9th Cir.), cert, denied, 444 U.S. 826 (1979) . . . 25 Kingv. Gull Baylndian Band (1983), 38 CPC 1 (Ontoc) ...53,181 Kruger v. R., [1978] 1 SCR 104 ... 128-9, 216 The Lauderdak Peerage (1885), 10 AC 752 ... 163 Logan v. AG Can., [1959] OWN 361 ... 19 Lone Wolfv. Hitchcock, 187 u.s. 553 (1903) . . . 17 Mackeyv. Coxe, 59 u.s. 100 (1855) . . . 16 Manuelv. AC, [1982] 3 All ER 786 (Ch.) . . . 108,122, 216 McClanahanv. Arizona State Tax Commission, 411 u.s. 164 (1973) . . . 16, 24 McCurtain v. Grady, 38 sw 65 (1896) . . . 16 McDiarmidv. McDiarmid (1862), 9 Ch. 144 (uc) . . . 140 Menominee Tribev. u.s., 388 F 2d 998 (Ct Cl., 1967), 391 u.s. 404 (1968) . . . 25 Merrion v.Jicarilla Apache Tribe, 455 u.s. 130 (1982) . . . 16, 25, 26,178-9, 217 Mescalero Apache Tribev. Jones, 411 U.S. 145 (1973) . . . 24 Mittbrook Indian Bandv. Northern Counties Tenancies Bd. (1978), 84 DLR (3d) 174 (NSSC) . . . 130 Minterv. Shirley, 3 Miss. 376 (1871) . . . 16 Mitchelv. u.s., 9 Peters 711 (1835) . . . 76 Mohegan Indians v. Connecticut, in Smith,].H., Appeals to the Privy Council, 422-42 . . . 28-9, 37-45, 49-50, 52, 56,143, 206 Montana v. Blackfeet Tribe, 105 s Ct 2399 (1985) . . . 16 Montanav. U.S., 450 u.s. 544 (1981) . . . 25 Montoyav. u.s., 180 u.s. 261 (1901) . . . 17 Mvrtensenv. Peters (1906), 14 Scot LT 227 ... 5

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Mortonv. Mancari, 417 u.s. 535 (1974) ... 21 Mowatv. Casgrain (1897), 6 QLR 12 (CA) . . . 137,139,140 National Farmers Union Ins. Co. v. Crow Tribe, 105 s Ct 2447 (1985) . . . 16, 25 Nelson v. Children's Aid Society of Eastern Manitoba, [1975] 5 WWR 45 (Man. CA) ... 130 New Mexicov. Mescalero Apache Tribe, 462 U.S. 324 (1983) . . . 16 Nissan v. A.G., [1968] 1 QB 286 (CA), [1970] AC 179 ... 63 ReNoahEstate (1961), 2 DLR (2d) 185 (Terr. Ct) . . . 18 NorthcharterlandExploration Co. (1910) Ltd. v. R., [1931] 1 Ch. 169 ... 85 Ogdenv. Lee, 6 Hill's 546 (NY, 1844) . . . 16 Oliphantv. SuquamishIndian Tribe, 435 U.S. 191 (1978) . . . 17 Oneida Indian Nationv. County ofOneida, 414 u.s. 661 (1974), 434 F Supp. 527 (1977) ... 160 Ontario Mining Company v. Seybold (1900), 32 OR 301 (Div.Ct), (1901), 32 SCR 1 [1903] AC 399 (PC) . . . 23,137,139,141 Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe, 105 s Ct 3426 (1985) . . . 25 Palm Dairies Ltd. v. R. (1978), 91 DLR (3d) 665 (FC) . . . 130,184 Pap-Wee-Inv. Beaudry (1933), 1 WWR 138 (Sask. KB) ... 130 Parks v. Ross, 52 u.s. 362 (1850) . . . 16 RePaulette, [1976] 2 WWR 193 (NWTCA) . . . 139 People\. Dibble, 18 Harbour's SCR (NY, 1854) . . . 16, 20 Piche v. Cold Lake Transmissions Ltd., [1980] 2 FC 369 ... 55 Prattv. Sproxton (1977), 6 CPC 121 (Sask QB) ... 53,181 Princev. Tracey (1913), 13 DLR 818 (Man.) . . . 19 Procureur General du Quebec v. Paul, [1977] CSP 1054 ... 129 PuyaUup Tribe, Inc. v. Department of Game, 433 u.s. 165 (1977) . . . 25 Ramah Navajo School Bd. v. Bureau of Revenue, 458 U.S. 832 (1982) . . . 16, 17 Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) (1981), 125 DLR (3d) 1 (sec) . . . 54 Reference as to Powers, [1943] SCR 208 ... 5 Reference Re The Seabed and Subsoil of the Continental Shelf Offshore Newfoundland (1984), 5 DLR (4th) 385 (sec) ... 54 R. v. Agawa (1989), 65 OR (2d) 505 (CA) . . . 200 R. v. Baby (1855), 12 UCQB 346 ... 140 R. v. Bear's Shin Bone (1899), 4 Terr. LR 173 ... 18 «. v. Bonhomme (1917), 38 DLR 647 (Ex cc) . . . 76 R. v. Dennis, [1975] 2 WWR 630 (BC Prov. Ct) ... 129 R. v. Denny (1990) March 5 unreported (NS App. Div.) . . . 129 R. v. Dick, [1989] 1 CNLR 132 (BC Prov. Ct) ... 33-4, 200 R. v. FarreU (1831), [1825-59] 1 Legge 5(scNsw) . . . 55 R. v. George, [1964] 1 OR 24 (HC), [1964] 2 OR 429 (CA), (1966), 55 DLR (2d) 386 (sec) . . . 85,129,139

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Table of Cases

a v. Gingrich (1958), 29 WWR 471 (Alta. App. Div.) . . . 19,130 R v. Gnat Western Rivy. Co. (1862), 21 UCQB 555 ... 140 R. v. Groslmtis (1944), 81 ccc 167 (Que. Ct of Sessions) . . . 129 a v. Hill (1908), 15 OLR 406 (CA) . . . 129 K. v. Horse, [1985] 1 WWR 1 (Sask. CA), affd doc. no. 19164 Supreme Court of Canada, January 28,1988 ... 129 R. v. Horseman (1990) May 3, unreported (sec) . . . 130 R. v. Isaac (1975), 13 NSR (2d) 460 (CA) . . . 75, 85,128,129,139,141 R. v.Jim (1915), 22 BCR 106 (sc) . . . 129 R. v. Kogogotak (1959), 28 WWR 376 (Terr. Ct) . . . 75, 85 R. v. Koonungnak (1963), 45 WWR 282 (Terr. Ct) ... 75, 85 K. v. Lady McMaster, [1926] Ex. CR 68 . . . 85, 88, 137, 140 R. v. Martin (1917), 41 OLR 79 (App. Div.) . . . 129 R. v. Moses, [1970] 3 OR 314 (DC) ... 129 R. v. Nan-E-Quis-A-Ka (1889), 1 Terr. LR 211 ... 18 R. v. Peters (1966), 57 WWR 727 (VTCA) ... 129 R. v. Point (No. 2) (1957), 22 WWR, 527 (BCCA) . . . 115 R. v. Pritchard (1973), 32 DLR (3d) 617 (Sask. Dist. Ct) . . . 6 R. v. Ruddick (1928), 49 ccc 323 ... 164 R. v. Secretary of State for Foreign & Commonwealth Affairs, [1982] 2AllERll8(CA) ...84,85,107,122,216 R. v. Sikyea (1964), 46 WWR 65 (NWTCA), affd [1964] SCR 642 ... 75, 85 R. v. Simon (1986), 24 DLR (4th) 390 (sec) . . . 71 R, v. Sioui (1990) May 24, unreported (sec) . . . 130 R. v. Smith (1980), 113 DLR 572 (FCA) . . . 85,130,139 R. v. Sparrow, [1987] 1 CNLR 145 (BCCA), (1990) May 31, unreported (sec) . . . 71, 129,130 R. v. Stoneyjoe (1910), Public Archives Canada, RG vol. 6732, file 420-2A (Alta. sc) ... 129 R. v. Syliboy (1928), 50 ccc 389 ... 75 R. v. Symonds (1847), [1840-1932] NZ PCC 387 ... 55 R. v. Taylor (1981), 34 OR (2d) 360 (CA) . . . 129 R. v. White (1964), 50 DLR (2d) 613 (BCCA) . . . 85, 137 R. v. Williams (1958), 120 ccc 34 (Mag. Ct) . .. 129 Reynolds, 5 Dillon Crt Ct R 394 (Ark., 1899) . . . 20 Riderv. Ear (1979), 103 DLR (3d) 168 (Alta. sc) . . . 53,181 Roy Little Chief v AC Canada (1986), 5 WDCP 431 (FCTD) . . . 55 St. Ann's Island Shooting & Fishing Club Ltd. v. R. (1949), 2 DLR 17 (Ex. cc) .. . 139,140 St. Catherine's Milling & Lumber Co. v. R. (1885), 10OR 196 (Ch. D) ... 163,165 St. Catherine's Milling & Lumber Co. v. R. (1886), 13 OAR 148 ... 30,140,163,195

xx

Table of Cases

St. Catherine's Milling & Lumber Co. v. a (1887), 13 SCR 577 ... 12,13, 36, 39, 40, 76, 80, 85, 88,140,162-3 St. Catherine's Milling & Lumber Co. V.R. (1888), 14 AC 146 (PC) . . . 13, 88, 110, 119,121,133,134,135,138-^3,162,164n41,192, 212 Salamanv. Secretary, [1906] 1 KB 613 ... 63 Sammutv. Strickland, [1938] AC 518 ... 85 Sandersonv. Heap (1909), 11 WLR 238 ... 19 Sandy\. Sandy (1979), 25 OR (2d) 192 (HC) . .. 130, 137 Santa Clara Pueblov. Martinez, 436 U.S. 49 (1978) ... 16, 25, 56, 179, 216 Sask. v. Crane, [1979] 4 Sask. R. 161 (QB) .. . 6 Serov. Gault (1921), 50 OLR 27 . . . 19, 22-23, 28, 29, 30,129, 208, 213, 216 Sheldonv. Ramsay (1852), 9 UCR 105 (QB) . . . 19-20, 21, 22, 23, 28, 30,140, 208, 213,216 Simonv. R. (1986), 24 DLR (4th) 390 (sec) . . . 71 Skaarup Shipping Corp. v. Hawker Industries Ltd. (1977), 81 DLR (3d) 101 (FCTD) . . . 54 Sobhuzauv. Miller, [1926] AC 518 ... 63,139 Sunmonav. Disu Raphael, [1927] AC 881 (PC) . . . 139 Surrey v. Peace Arch Enterprizes Ltd. (1970), 74 WWR 380 (BCCA) . . . 130 Taltonv. Mayes, 163 U.S. 376 (1896) .. . 16, 25 Three Affiliated Tribesv. Wold Engineering, 104 s Ct 2267 (1984) . . . 16, 17 Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 54 USLW 4654 (1986) . . . 25 Ex Parte Tiger, 47 sw 304 (1898) . . . 16 Totten v. Watson (1858), 15 UCQB 392 ... 140 u.s. v.John, 437 u.s. 634 (1978) ... 25 u.s. v. Kagama, 118 u.s. 375 (1886) . . . 17 u.s. v. Mazurie, 419 u.s. 544 (1974) ... 16 as. v. Sioux Nation, 448 u.s. 371 (1980) . . . 160 as. v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940) . . . 16 u.s. v. Wheeler, 435 u.s. 313 (1978) . . . 16,17, 24 Re Wah-Shee (1975), 57 DLR (3d) 743 ... 18 Warman\. Francis (1958), 20 DLR (2d) 627 (NBSC) . . . 139 Warren Trading Post v. Arizona State Tax Commission, 380 u.s. 685 (1965) ... 16,17 Washingtonv. Confederated Tribes of ColvilleIndian Reservation, 447 u.s. 134 (1980) . . . 16, 25, 26-7 Washingtonv. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 u.s. 658(1979) . . . 2 5 Websterv. Reid, 1 Iowa 467 (1846) . . . 16 Westbrookev. AC (1865), 11 Ch. 330 (Ont.) . . . 140 Western International Contractors Ltd. v. SarceeDevelopments Ltd., [1979] 3 WWR 631 (AltaApp. Div.) . . . 130

xxi

Table of Cases

WewayakumIndian Bandv. Canada (1989), 92 NR 241 (sec), [1989] 1 SCR 332 sub nom Robertsv. Canada... 5, 30-2, 52-7,146, 218 White\. Boat (1728), 2 TR 274; 100 ER 149 ... 164 White Mountain Apache Tribe v. Bracker, 448 u.s. 136 (1980) . . . 16, 17 Re Williams Estate (1960), 32 WWR 686 (BCSC) . . . 130 WWamsv. Lee, 358 U.S. 217 (1959) . . . 16 Winters v. United States, 207 u.s. 564 (1908) . . . 25 Worcesterv. Georgia, 6 Peters 515 (1832) . .. 13-19, 28, 36-7, 55-6

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Acknowledgments

Professor and Dean of Law Dr Geoffrey MacCormack as my doctoral thesis mentor guided, encouraged and facilitated the enquiry upon which this book is based. He made the process a genuinely enjoyable dialogue, one that I treasure. From the more distant past, I remember and have to thank Gary Potts, James Morrison, William Eccles, the late Edward Rogers and his widow, Mary Black-Rogers, John Nichols, James Wright, Brian Slattery, Donald Smith, Craig Macdonald, Thor Conway, Richard Lee, Conrad Heidenreich, Basil Johnson, the late Kermit Moore, Kirk Wipper, Rosemary McCormack, and also the late Phylis Berger for her tireless support of aboriginal peoples. More recently, I have in addition to thank Roy Clark and David Book. Fortune smiled upon me when Frances Emery became my copy editor at McGill-Queen's University Press, and I want to thank her, as well as Grace Campbell who so efficiently typed and re-typed the manuscript through its countless scratch-outs and revisions. For seven years my wife Margaret and I, and our children David, Zoe, and Beau, lived on the Indian reserve of the Temagami Band of Indians at Bear Island, Lake Temagami, Ontario. For better and for worse, but never to be the same or what they might have been, our lives were changed. As our friends, neighbours, and mentors, the aboriginal people at Bear Island occupy a large place in our hearts and I wish to acknowledge this. I also thank the C.B. Davidson Bequest Scholarship Trustees, and the Canada Mortgage and Housing Corporation Scholarship Program, for financially aiding my research.

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Preface

It might be desirable to amend the constitution of Canada to acknowledge the distinctiveness of native society as a symbolic gesture and as an aid to construction of instruments. But it is unnecessary to amend the constitution to add an aboriginal right of self-government, for that right is already entrenched as an "existing aboriginal right" within the meaning of section 35 of the Constitution Act, 1982. The right was confirmed by prerogative legislation and by constitutional common law precedents in the eighteenth and nineteenth centuries. It has been reiterated in the statutes of the imperial government which also established the corresponding constitutional powers of the federal and provincial governments. As originally constituted and since perpetuated, the right has meant that federal and provincial governments may not legally encroach upon the natives' jurisdiction to govern their own civil affairs in relation to unceded territory. But those federal and provincial governments are not under any express constitutional obligation financially to support native governments. This means that although the political constitutional debate (misguidedly) concerns the existence of the right, the underlying economic problem is how to apply the right that in fact already exists. The aboriginal peoples of Canada do not need a new right - they need the money and the cooperation to make the existing constitutional right work in practice. They need enough of their land back to have a territorial base upon which to exercise their right. Although the basis for the right was not the domestic common law, the only basis consistent with current federal policy is that it be treated as if it were domestic common law. That policy presumes that if ever the aboriginal right had existed it had been superseded historically by actions of federal and provincial governments inconsistent with it. I submit, however, that since the imperial legislation

xxvi

Preface

that actually confirmed the right and subsequendy reiterated it has never been repealed, such supersession is a legal impossibility. Because it is basic to federal policy the supersession idea nevertheless dominates the current approach to law reform. It also dominates the negotiation process, which proceeds upon the assumption that the municipal form of self-government on offer, with its delegated enumerated powers to carry out local works, is at least "something" where (if the supersession idea were true) "nothing" exists at die present time. In reality, the existing right is an inherent and full right of civil self-government, not a restricted set of enumerated powers. The federal and provincial policy of ignoring die existing law, in practice, creates an erroneous but nonetheless pervasive popular assumption that no right of self-government presently exists at law. The native people, out of political pressure, engage in constitutional negotiations in order somehow to dislodge this assumption. Unfortunately, the very process of ongoing constitutional negotiations places the existing right at risk by threatening to substitute a paler version. I submit that the process of law reform, and indeed race relations domestically and Canada's reputation internationally, would be advanced by recognizing the law as presently constituted, and eidier honouring it or changing it. It is not, therefore, the focus of this book to argue the moral case for or against the aboriginal right of self-government; it is only to identify the existing law. The character of the existing law must surely be a threshold for assessing the appropriate direction of law reform.

Native Liberty, Crown Sovereignty

Not beneath nature and pagan gods Nor above nature as God's agent But as wholeworld beings The juay was felt not calculated. Until the continuity was battered By abstract laws of a foreign reason That were thought a gift But experienced as tyranny. The struggle subsided And the children of quietness and heirs of peace Wait for the cycle To bring liberty back. Respect replacing condescension Hope quickening. B.C.

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Introduction

Native liberty and crown sovereignty complement each other in Canada. Faced with numerous and warlike tribes, and not being entirely impervious to sentiments of natural justice, the imperial government of Great Britain in the eighteenth century recognized the liberty of the indigenous peoples not to be molested or disturbed on their unceded territories. This liberty received constitutional protection throughout British North America. The imperial government claimed overall sovereignty. Pursuant to that sovereignty it constituted the powers of the colonial governments. The powers delegated by the imperial government to these colonial governments were made to accommodate the previously recognized liberty of the natives. This constitutional pattern was never abrogated and thus, under the umbrella of crown sovereignty, it continues to describe a constitutional status in Canada. The jurisdiction of federal and provincial governments to govern ceded territory is constitutionally counter-balanced - by the jurisdiction of the aboriginal peoples to govern themselves upon territory that they never voluntarily ceded. For this reason, if the right of self-government exists at law, it means that what has been called the Indian race1 has a legislative jurisdiction from which non-natives are excluded. The right's connotation is that, for political purposes, Canadians are legally segregated into racial 'As used here, "Indian race" means the set of persons or political entities that claim to trace descent to pre-Columbian original inhabitants of North America. This concept includes a range of potential constituent subsets, from individual Indians to political associations such as those styled "first nations." The text focuses upon the right of self-government constituted for legal purposes with reference to several of the subsets, in relation to the particular circumstances and territories described.

4

Native Liberty, Crown Sovereignty

classes. This study demonstrates both that the right does exist2 and that its concomitant of racial segregation (or racial liberty, depending upon one's perspective) has been a feature of Canadian constitutional law for as long as the country has been in existence. The right was confirmed under legislation enacted by the imperial government, which has never been repealed, and it has been endorsed by constitutionally binding common law precedents. Nevertheless, some native leaders in Canada may not necessarily wish to press for recognition of the existing aboriginal right of self-government. That right constitutes merely a bare power, and has no financial or other support. For practical purposes, however, it takes money to run a modern government. For reasons of political pressure, therefore, it may be thought to be counter productive to press for court recognition of the existing right. Even if the will to proceed exists, the very process of going to court takes the debate out of the political forum, where the native leaders are active participants, and places it almost entirely in the hands of non-native lawyers and judges. The non-native federal and provincial governments do not necessarily want the imperially enacted law to be acknowledged either, but they have different reasons: these governments have been ignoring the law in practice, and for reasons of political expediency therefore have an interest in avoiding accountability for their transgressions. These political considerations are disincentives to an acknowledgment that the aboriginal right of self-government is already an "existing aboriginal right" recognized and affirmed under section 35 of the Constitution Act, 1982. The politically acceptable course may be to ignore the right as presently constituted in order to be free to reinvent it, but in a more comfortable context. In the weaving of this political web the law has been entangled, and misunderstood. My objective is to reassess the law's provisions, with two ends in view. An entrenched 2

In contrast, see Bartlett, Subjugation, Self-Management, and Self-Government of Aboriginal Lands and Resources, abstract, ix: "It is concluded that self-government of aboriginal lands and resources has not, and does not yet, exist in Canada." Other academic writers have argued that the right of self-government does exist, but erroneously have attributed the right primarily to common law rather than to binding written constitutional instruments. See, for example, Slattery, "Understanding Aboriginal Rights," 736-41. Still others have stressed domestic legislation and relegated the more significant constitutional legislation to a background context role. See, for example, Mason, "Canadian and United States Approaches to Indian Sovereignty," and 423-4; Nakatsura, "A Constitutional Right of Indian Self-Government," 96,99. At no time have the several constitutional instruments all been analysed together, as is both appropriate and necessary to an integrated and complete analysis of the right of self-government as an existing aboriginal right.

5

Introduction

habit of thought in Canada is the popular assumption that natives do not already have the right of self-government. From this cherished misconception often springs a concomitant assumption that the law, by not providing for this right, is oppressive. The truth is that the law has all along made provision for the aboriginal right of self-government, though those charged with application of the law have not consistently applied it. The defence of the law, of its integrity against these baseless assumptions, which would make the law a scapegoat for native society's misfortunes, is therefore my first aim. Second, because law reform will be more effective if based upon an accurate view of the law to be reformed, I attempt to provide that more accurate view. The sources that make the right of self-government an "existing" aboriginal right, for legal purposes, are the cases and legislative instruments. Those are the primary sources I have used. Sources of law of more remote character, such as the international law of human rights, have been excluded from this study's frame of reference, although naturally moral principles from a philosophical or international law context may previously have worked their way into the cases or legislation.3 The determinative section of the Constitution Act, 1982 regarding this word "existing" is section 35(1): The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed [emphasis added]." The first point to be made is that the "right" referred to in the title of this work must have been "existing" by having been constituted as of the date that act came into force, 17 April 1982.4 The term "aboriginal" is the second important component of the 5

See generally Langan, Maxwell on the Interpretation of Statutes, 183, 185; Dreidger, The Construction of Statutes, 129-30; Reference as to Powers, [1943] SCR 208, 213-14; and Mortensen v. Peters (1906), 14 Scot. LT 227, 230, 232. In contrast, there is a view that international commitments can be directly transposed and made binding of their own force in domestic law, regarding which see, Comment, The Review: International Commission of Jurists 35, no. 7 (1985); and Clark, Indian Title in Canada 102-6. 4 This is the conventional approach toward identifying aboriginal rights in Canadian law. See, for example, Calderv. AC for BC, [1973] SCR 313, 401. The issue relative to the existence of the aboriginal proprietary right was defined as follows: "This important question remains: were the rights either at common law or under the Proclamation extinguished." The relevant sources were taken to be, as they are here, the cases ("common law") or legislation ("the Proclamation"). See also Guerin v. A, [1984] 2 SCR 335, 377; and Wewayakum Indian Band v. Canada (1989), 92 NR 241, 257-9, 262-3. And see Claxtonv. Saanichton Marina Ltd., [1987] 4 CNLR 48 (BCSC), 60, per Meredith, j.: "rights cannot exist in a vacuum: they must be conferred, they must be recognized, and they must have a means of protection [emphasis added]."

6

Native Liberty, Crown Sovereignty

tide. As used in this study "aboriginal" means the racial class identified at law as having rights and liabilities distinguished from the rights and liabilities of other Canadians. Domestic laws may distinguish natives for some purposes but not for other purposes, and the definition of aboriginal can vary from case to case and from legislative instrument to legislative instrument. This does not matter for present purposes. Here "aboriginal" is meant in its broadest sense. It is the "them" (or the "us," depending upon one's racial affinity) that serves to identify the race segregated for legal purposes in a legal system diat constitutionally acknowledges a racial "them versus us" dichotomy. No other race is identified as severable for legal purposes in Canadian constitutional law. The law is less than clear on the rules for determining membership in these racial classes. There is no independent and consistent interpretation act or academic convention diat precisely defines the content of this racial concept for constitutional purposes.5 Section 35 of die Constitution Act, 1982 uses the phrase "aboriginal peoples." However, the vagueness of die section's phrase adds no definitional clarity. The section constitutes an open-ended category, defining the general term "aboriginal peoples" as "including" diree subcategories, each of which is itself an open-ended, undefined term: "35(2) In diis Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada [emphasis added]." This lack of precision is not, however, a failure on die part of die law. The law has left open the question of die identification of die aboriginal peoples so that they can identify themselves. They continue to have die jurisdiction to determine dieir own membership in tiieir own political organizations, as they had in aboriginal times. The third component in the tide phrase is "self-government." Herein it is taken to mean the power to enact laws that courts will enforce as being paramount when in conflict with the laws of other bodies politic. "Self-government" is predicated on the existence of native bodies politic. It does not suggest that native individuals as individuals are severally laws unto diemselves. Most important, self-government must be carefully distinguished from self-management or self-administration. The latter terms can include die function of managing or administering laws made by some other body politic; "self-government" however, as used here, means making one's own laws, laws that can have precedence 5

A credible attempt to define a "constitutional Indian" category was made in ft. v. Pritchard (1973), 32 DI.R (3d) 617 (Sask. Dist. Ct), 619-21; and in Sask. v. Crane, [1979] 4 Sask. R 161 (QB), 163-8. See also Reference whether term "Indians" includes "Eskimo", [1939] SCR 104.

7 Introduction

over the laws of outside lawmakers when the laws conflict. The study's frame of reference is determined therefore by the word "right" as modified by the word "existing" of section 35 of the Constitution Act, 1982, restricting the relevant sources to cases and legislative instruments. The word "aboriginal" in the title designates that the existing right in question is referable to racially defined legal collectivities. The character of the existing right enjoyed by this particular race as "self-government" is that of independent lawmaker. Government is normally understood to have a territorial extension. The aboriginal right of self-government is no different. It is the right of a race to govern itself with reference to territory. Historically that territory was identified as a residual category of land, being "such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds."6 These words, from the Royal Proclamation of 1763, are representative of a continuous and consistent approach. A series of constitutional instruments promulgated by the imperial government speaks of land that is "reserved." Evidence of the land's still being reserved is found negatively in the fact that the land has never demonstrably been unreserved - that is, never "ceded to or purchased by" the crown. The crucial point is that all land in what is now Canada started out by being reserved.7 The aboriginal right of self-government was conceived as existing with reference to this original category of reserved land. Subsequently, treaties deemed that portions of the previously unceded "hunting grounds" (or some similar designation, such as "Indian territory") would henceforth be regarded as "reserves." The effect of this was to make certain domestic legislation known as Indian acts referable to the territorial subdivisions so established. The self-government power considered in this work will be shown to exist in relation to this concept of "reserved" land, in both the original and subsequent senses just identified. Under the Royal Proclamation of 1763 and several other imperial legislative instruments constituting the self-government right, the natives were assured that the crown would not unilaterally usurp any part of British North America. The proclamation thus enacted that the natives "should not be molested or disturbed" upon "their Hunting Grounds," until they sold "their" lands to the crown.8 Depending upon the precise wording of each given treaty (whereby lands became 6

Royal Proclamation of 1763, RSC 1970, app.n, no. 1, at 127 (herein referred to as "the proclamation"). 'See chapters 2 and 3. 8 Supra note 6, at 128.

8

Native Liberty, Crown Sovereignty

purchased by the crown and hence freed of the burden of aboriginal rights), subsequently created "reserves" might or might not still be subject to the original right of self-government as constituted by the proclamation. In some situations, therefore, all that may exist on die "Indian reserves" is the truncated form of self-government spelled out in the Indian Act.9 In other situations the treaties in question may have to be interpreted so as to leave the original "Indian territory" right of self-government presumptively intact relative to the "reserve" newly established by the given treaty. The territorial extension of the aboriginal right of self-government in Canada cannot be easily settled in advance of particular cases. The status of each piece of land must be determined on the basis of the merits of the legal history of that particular ground. Even so the fact remains: historically all land was constitutionally reserved, and hence rendered subject to the aboriginal right of self-government. Whether the right continues in a particular case depends upon the interpretation of the documentation purporting to have interrupted the continuity of the right by altering the legal status of the particular land to which the right related. A point of terminology that must be clearly understood is that "common law," as used herein, means 'judge-made" law as opposed to statute law. Chapter 1 of diis study deals with the common law as a distinct issue, severable from statute law when identifying the basis for the aboriginal right of self-government. It will not do to assume, as has occasionally been done, that colonial governments in the pre-confederation era had inherent sovereign powers permitting them to override the powers vested by the imperial government in native governments. The constitutional common law identified in chapter 1 and, even more important, the legislation identified in chapters 2 and 3, confirmed the existence of the aboriginal right of self-government. In the first place, federal and provincial governments simply were never assigned sovereign powers over the indigenous race by the imperial government. Furthermore, by reiterating the continued existence of the Indian territory concept first identified in the 1763 proclamation, the imperial Parliament perpetuated the legal attributes of the Indian territory, including the aboriginal right of self-government. Thus when the powers of federal and provincial governments were constituted in Canada they were made to accommodate this previously established aboriginal right. In the nineteenth century, as chapter 4 demonstrates, the imperial government did constitutionally take back some of the power formerly allowed the natives. The law regulating crimes and offences as defined 9

RSc 1970, c. 1-6.

9

Introduction

by domestic governments and their courts was made universally applicable throughout what is now Canada. Thereafter the aboriginal right of self-government can be understood only in terms of a civil jurisdiction, not in terms of a crimes and offences jurisdiction. Chapter 5 identifies as a major obstacle to the practiceof self-government the recent position of the federal government that the aboriginal right has been "superseded." Federal policy since 1973 has made the assumption that if ever this aboriginal right existed it has by now been superseded by actions taken by federal and provincial governments inconsistent with it. Such a supersession might have been legally possible if the basis for the aboriginal right had only been domestic common law. It is not legally possible, however, that federal and provincial actions could have superseded the legislation of the imperial government and the colonial law precedents constituting the powers of the federal and provincial governments. Operating upon the basis of its erroneous assumption, the federal government now offers a municipal style of self-government, with enumerated local government powers. The illusion is that this is something being offered in the place of nothing. In this chapter the recommendation is made that substantial progress could result from recognizing the existing law and upon that basis moving forward to negotiate reforms of it. In the Conclusion the issue of segregation versus integration, which underlies the self-government debate, is put in a historical context. In the eighteenth century segregation of society into racial enclaves for legal purposes was the dominant political philosophy. Integration ideology challenged this in the nineteenth century, until eventually in the mid-twentieth century Canadian courts were assuming the integration ethic to be overwhelmingly dominant. Yet even as the courts were doing this, the forces of segregation (or liberation, depending upon one's perspective) ideology were gathering strength for a major offensive, which now appears to be sweeping the field. Racial compartmentalization therefore seems destined to persist as a feature of Canadian constitutional law. The essential premise that underlies this manuscript is that legal protection and reservation of tribal sovereignty follow from legal protection and reservation of tribal land. The British crown historically reserved all unceded North American land, and enacted that upon such land the native nations or tribes should not be molested or disturbed. The argument is that by not molesting or disturbing these political entities, one necessarily leaves them in a self-governing condition. Many cases have been decided and many legislative instruments enacted that indirectly speak to the issue and therefore must be accounted for. These have the capacity to structure the debate, even though

10

Native Liberty, Crown Sovereignty

few ask and fewer answer the direct question. This book is specifically a study of the law as it affects the aboriginal right of self-government. It does not attempt to deal with the broader moral and philosophical issues related to that right. Although the study refrains from moralizing about social justice, a linkage between social and legal justice is perhaps inevitable. I intend to suggest that rights improperly and illegally ignored should be restored, and compensation be made for past wrongs. But I should want this suggestion to be based upon respect for the rule of law, not upon sentiment. This study therefore considers all the surrounding judicial and legislative commentary to determine whether it is more or less consistent with the underlying premise that the right exists. It begins with the common law, which might be argued to constitute the obligation not to molest or disturb; it concludes with the legislation, which indisputably constitutes exactly that obligation.

CHAPTER ONE

Common Law of Self-Government

The common law exists in two senses, as ordinary domestic law and as constitutional law. In the former sense, as domestic common law, it consists in judicial decisions that govern some point of private law in society, such as the right to possess land. In the latter sense, as constitutional common law, it consists in judicial decisions that govern some point of public law, such as the constitution of powers and the vesting of them in federal, provincial, or aboriginal peoples' governments. The common law comes into play when a court makes a decision, not by construing and applying statutory law, but rather, in the absence of a statutory law governing the point in question, by identifying a fundamental principle and choosing to recognize that principle as having the legal force to settle the point. In this sense the common law is purely judge-made. In Canada it is doubtful whether there is a sufficient body of domestic common law to justify an opinion that the aboriginal right of selfgovernment has been constituted on this particular basis. It is, however, fair to say that the right exists on the basis of established constitutional common law precedents. The significance of the distinction between the domestic and constitutional forms derives from the fact that federal or provincial governments can easily change domestic common law. To do that all they have to do is enact legislation that conflicts with the domestic common law. In that event the domestic legislation overrides or supersedes the domestic common law. In contrast, such domestic legislation could not override or supersede the constitutional common law. This is a concomitant of empire. As successors of colonial governments exercising powers historically conferred, federal and provincial governments enjoy delimited powers. The terms of the delimitation

12

Native Liberty, Crown Sovereignty

are defined in part by constitutional cases. When the judges decide such cases, they are primarily guided by constitutional legislation. But occasionally the judges will have to draw upon first principles, if the legislation does not settle a given point. When this occurs the judges create constitutional common law - "constitutional" in the sense that the decision delimits constitutional powers. The first section of this chapter deals with domestic common law. The second deals separately with the constitutional common law. DOMESTIC COMMON LAW A uniquely "domestic" common law aboriginal right of self-government has not yet been recognized by Canadian courts, although it has become well established in the case law of the United States of America. Nevertheless, a possible argument can be made that the American courts domestically have enunciated a doctrine applicable to the whole of North America, based ultimately upon the same original British principles shared by both countries.' The problem with this argument is that in spite of the undeniable existence of the British tradition in the colonial era, American and Canadian courts have since taken divergent paths. In the United States the self-government law has been judge-made, whereas in Canada the emphasis has been upon legislation. There was an ideological reason for this: the American judiciary's perspective was politically oriented, whereas in Canada the domestic courts expressly identified a racial focus and rejected the political focus. In the formative years it may at one point have seemed as if a Canadian domestic common law upon the subject of aboriginal rights was in the offing. Strong j. of the Supreme Court of Canada in the St Catherine's MilKngcase of 1887, in the course of discussing a leading legislative instrument,2 held that "it gives legislative expression to what I have heretofore treated as depending on a regulation of policy, or at most on rules of unwritten law and official practice, namely the 'See, for example, Clark, Indian Title in Canada, 6; Slattery, "Understanding Aboriginal Rights," 736—41. It may be legitimate to use American common law in Canadian cases involving "Indian title," that is, the specifically proprietary aspect of the broad complex of rights sometimes generically called "aboriginal rights." I argue, however, that greater care must be taken when using American common law precedents in relation to the aboriginal right of self-government aspect of the aboriginal rights complex. 2 Royal Proclamation of 1763, RSC 1970, app. n, no. 1. Note that "Strong j." is the abbreviation common in law works for the title "Mr Justice Strong." This and similar abbreviations ("Marshall cj." for "Chief Justice Marshall") are used throughout this study.

13

Common Law of Self-Government

right of the Indians to enjoy, by virtue of a recognized title, their lands not surrendered or ceded to the crown."5 The process by which the "rules of unwritten law" became constituted a uniquely common law right was enunciated in the classic decision of Marshall C.J. of the Supreme Court of the United States in Worcester v. Georgia.'' This case at one time promised to figure prominently in Canadian law because of its wholesale adoption by Monk j. in the leading Quebec case Connolly v. Woolrich? Indeed, an entire passage of Worcester, quoted in Connolly, is such a complete code upon the North American common law aboriginal right of self-government that, in spite of its unusual length, it is well worth considering in its entirety. This constitutive primary source for the right at common law in the United States, as introduced to Canada by Connolly was as follows: [W]ill it be contended that the territorial rights, political organization such as it was, or the laws and usages of the Indian tribes, were abrogated - that they ceased to exist when these two European nations [France and Great Britain] began to trade with the aboriginal occupants? In my opinion it is beyond controversy that they did not - that so far from being abolished, they were left in full force, and were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of a learned and august tribunal - the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports pages 515-542), Chief Justice Marshall - perhaps one of the greatest lawyers of our times in delivering the judgment of the Court, said: America, separated from Europe by a wide ocean, was inhabited by a distinct people divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors. After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into *St Catherine's Milling & Lumber Co. v. «. (1887), 13 SCR 577, 621 (emphasis added). Although Strong j. was dissenting in the result, upon his essential point that the Indian right was strictly speaking a legally recognized one, he was upheld on appeal to the Privy Council. See (1888), 14 AC 46 (PC). 4 6 Peters 515 (1832). 5 (1867), 11 LCJ 197 (Que.).

14

Native Liberty, Crown Sovereignty

this western world. They found it in possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing. Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers? But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions. The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants were too powerful to submit to the exclusive and unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the [European] nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlement on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. The regulation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them ... Soon after Great Britain determined on planting colonies in America, the king granted charters ... They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations,

15

Common Law of Self-Government

equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the [Indian] people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood ... Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The King purchased their lands when they were willing to sell, at a price they were willing to take; but he never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self-government, so far as respected themselves only. Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout [the Worcester decision]. The principles laid down in this judgment [of Marshall cj.], (and Mr Justice Story as a member of the Court concurred in this decision), admit of no doubt.6

In Connolly the Canadian court was considering the validity of a marriage contracted according to Indian custom upon lands that had never been ceded to or purchased by the crown. The court held that the Indian custom was binding, and that the marriage was valid and cognizable in the Quebec court. That decision was based upon the holding that Indian laws in general continued to be enforceable. That conclusion in turn was based upon the American decision in the Worcester case. The Worcester decision was based upon a convention of international law - namely, that the European discovery of North America was without prejudice to the aboriginal peoples' preexisting right of self-government. During the years in which Chief Justice Marshall sat, the American Supreme Court handed down a series of other cases of first instance in which unwritten laws, policy, practice, international law concepts, and ideas about natural justice were canvassed. These sources were 6

Ibid., at 205-7 (emphasis added).

16 Native Liberty, Crown Sovereignty interpreted to require the American courts to admit the overall sovereignty of the European nation with as little prejudice as possible to the right of the natives to continue governing their own daily affairs. The legal status of aboriginal peoples under this notion came to be expressed by the phrase "domestic dependent nations."7 Thus by this process, the idea of the domestic dependent nation was constituted a right at domestic common law. The right meant that the several indigenous nations, tribes, or bands had a recognized legal personality. They were, by this common law concept, recognized as political entities with the constituted jurisdiction to govern their own civil affairs. The point of the adjectives "domestic" and "dependent" was that those native bodies politic did not have any legal personality as nation-states for international lawpurposes. The natives' political identity was restricted to the domestic forum and depended upon the domestic common law that constituted it for legal purposes. The concept of domestic dependent nations has been a consistent and prominent feature ever since, in the American cases.8 This does not mean that the issue of aboriginal self-government was never ''Johnson v. Mclntosh, 8 Wheat. 543, 574 (1823); Cherokee Nation v. Georgia, 5 Peters 1, 16 (1831); Worcester v. Georgia, supra note 4, at 582 per McLean j. 'Comet v. Winton, 2 Verg. 129, 130 (Tenn. CA, 1826); Coleman v. Tish-Ho-Mah, 4 Smedes & M. 40, 48 (Miss. HO of E & A, 1844); Ogden v. Lee, 6 Hill's 546, 550 (NY, 1844); Webster v. Reid, 1 Iowa 467, 476 (1846); Parks v. Ross, 52 u.s. 362 (1850); People v. Dibble, 18 Harbour's SCR 412, 413 (NY, 1854); Mackey v. Coxe, 59 u.s. 100 (1855); Fellows v. Denniston, 23 NY 420, 431 (CA, 1861); Re Kansas Indians, 72 u.s. 737, 756 (1866); Minterv. Shirley, 3 Miss. 376, 384 (1871); Holden v. Joy, 84 u.s. 211, 242 (1872); Ex parte Crow Dog, 109 u.s. 556 (1883); Choctaw Nation v. U.S., 119 u.s. 1 (1886); McCurtain v. Grady, 38 sw 65, 72 (1896); Talton Mayes, 163 u.s. 376, 384 (1896); Ex parte Tiger, 47 sw 304, 305-6 (1898); u.s. v. United States Fidelity &" Guaranty Co., 309 u.s. 506 (1940); Williams v. Lee, 358 u.s. 217 (1959); Warren Trading Post v. Arizona State Tax Commission, 380 u.s. 685, 690 (1965); Kennerly v. District Court, 400 u.s. 423, 426-7 (1971); McClanahan v. Arizona State Tax Commission, 411 u.s. 164 (1973); u.s. v. Mazurie, 419 u.s. 544, 556-7 (1974); Fisher v. District Court, 424 u.s. 382, 390 (1976); Santa Clara Pueblo v. Martinez, 436 u.s. 49 (1978); u.s. v. Wheeler, 435 u.s. 313, 319-32 (1978); Central Machinery Co. v. Arizona State Tax Commission, 448 u.s. 160, 165-6 (1980); Washington v. Confederated Tribes of Colville Indian Reservation, 447 u.s. 134, 153 (1980); White Mountain Apache Tribe v. Bracker, 448 u.s. 136, 142 (1980); Merrion v. Jicarilla Apache Tribe, 455 u.s. 130, 133 (1982); Ramah Navajo School Bd. v. Bureau of Revenue, 458 u.s. 832, 837, 856-7 (1982); New Mexico v. Mescalero Apache Tribe, 462 u.s. 324, 332-3, 338 (1983); County of Oneida v. Oneida Indian Nation, 105 s Ct 1245, 1251-2 (1984); Three Affiliated Tribes v. Wold Engineering, 104 s Ct 2267, 2274 (1984); Kerr-McGee Corp. v. Navajo Tribe, 105 s Ct 1900 (1985); Montana v. Blackfeet Tribe, 105 s Ct 2399 (1985); National Farmers Union Ins. Co. v. Crow Tribe, 105 s Ct 2447, 2451-2 (1985); Iowa Mutual Ins. Co. v. Laplante, 107 s Ct 971 (1987); Hodelv. Irving, 107 s Ct 2076 (1987); and California v. Cabazon Band of Mission Indians, 107 s Ct 1083 (1987).

17

Common Law of Self-Government

doubted in the United States.9 However, the weight of authority overwhelmingly affirmed the existence of a common law aboriginal right of self-government in that jurisdiction. Indeed, in one opinion the existence of this right even precluded the application of state law to reserved lands in the United States whether or not the federal government or the Indians themselves actually had passed specific laws upon the given subject,10 although the point that state jurisdiction was excluded in all situations was not borne out by another series of cases which suggested that the exclusion occurred only in the event of actual subject-matter conflict with federal or Indian laws.11 As far as Canada is concerned, we have noted how the Quebec court in Connolly in 1867 applied the seminal American decision of Marshall CJ. in Worcester.™ Can it legitimately be argued that by means of Connolly, Canada adopted the American jurisprudence regarding the aboriginal right of self-government? Connolly was affirmed in the Quebec Court of Appeal in 1869 when Badgley j. held: It is true that conquest gives a title which the courts of the conqueror cannot deny, whatever may be the speculative opinion of individuals, respecting the original justice of the claim which has been successfully asserted. But although this title is acquired and maintained by force; humanity, resting on public opinion, has prescribed rules and limits by which it may be governed, and hence it is very unusual, even in case of conquest, to do more than displace

Vs. v. Kagama, 118 u.s. 375, 379 (1886); Cherokee Nation v. Southern Kansas Ry. Co., 135 u.s. 641 (1890); Montoya v. u.s.,180 u.s. 261 (1901). See also Lone Wolf v. Hitchcock, 187 u.s. 553 (1903). A later opinion in Otiphantv. Suquamish Indian Tribe, 435 u.s. 191, 209 (1978), suggested that tribal self-government existed only by virtue of sheltering under the larger federal government jurisdiction. That is, that it existed as an enclave of federal law rather than as an independent jurisdiction in its own right: contra u.s. v. Wheeler, 435 u.s 313, 319-32 (1978), which endorsed Indian self-government as an inherent aboriginal right existing independently of the federal domestic law umbrella. See Arrow, "Contemporary Tensions in Constitutional Indian Law." w White Mountain Apache Tribe v. Bracker, 448 u.s. 136 (1980); Three Affiliated Tribes v. Wold Engineering, 104 s Ct 2267 (1984). "Warren Trading Post v. Arizona Stale Tax Commission, 380 u.s. 685 (1965); Central Machinery v. Arizona State Tax Commission, 448 u.s. 160 (1980); Ramah Navajo School Bd. v. Bureau of Revenue, 458 u.s. 832, 839-40 (1982). This may be compared with the Canadian situation, where section 88 of the Indian Act, RSC 1970, c. [-6, says that provincial laws of general application apply in relation to Indians for Indian Act purposes - that is, in relation to conduct on Indian reserves, but not necessarily to conduct on lands reserved for Indians in the broader constitutional sense of lands never "ceded to or purchased by" the Crown pursuant to the Royal Proclamation of 1763, RSC 1970, app n, no. 1, at 127. 12 Supra note 4.

18

Native Liberty, Crown Sovereignty

the former sovereign, and assume dominion over the conquered country, as in the instance of this country, and its cession by France. The modern usage of nations would be violated, if private property should be confiscated and private rights annulled. - Therefore the relations of the people to their ancient sovereign or government are dissolved, but their relations to each other, and their customs and usages remain undisturbed. If this is the actual result of conquest, and if its limits are restricted in this manner, it is manifest, that the mere exclusive right of trading in furs with the inhabitants of the licenced country, does not interfere with the local or national customs of those people. Even the United States are careful to acquire the Indian title, either by purchase or by other conventional means, before white occupancy can be allowed, or public grants made.15

Although Badgley J. in the Quebec Court of Appeal thus confirmed Monk j.'s trial decision in its result, there was a subtle difference in his reasoning, which made a substantial difference to the selfgovernment issue. The Court of Appeal cast doubt upon that part of the lower court's decision respecting the aboriginal right of selfgovernment when it said, 'Therefore the relations of the people to their ancient sovereign or government are dissolved but their relations to each other, and their customs and usages remain undisturbed." The Court of Appeal thus apparently ruled that the independent political standing of the natives was terminated by the assumption of sovereignty by the crown. Only their personal relations, such as those of marriage, in which the crown did not wish to interfere, might still continue to be regulated according to custom. In contrast the trial judge, in upholding the validity of customary marriages in the court below, had done so upon the basis that such marriages represented an exercise of a larger, inherent self-government power. His comments, unlike the higher court's, had not been restricted to a mere matter of customary contracts between private individuals, representing nothing more than an alternative way of getting married as a matter of personal status law. Since this 1869 decision of the Court of Appeal, Canadian courts have repeatedly confirmed the principle that customary law can affect personal issues such as marriage, custody, and child adoption.14 The 15 H

(1869), 1 RLOS 253 (Que. CA), 356-7, (emphasis added). A v. Nan-E-Quis-A-Ka (1889), 1 Terr. LR 211; ft. v. Bear's Shin Bone (1899), 4 Terr. LR 173; Re Noah Estate (1961), 2 DLR (2d) 185 (Terr. Ct); Ex parte Cote (1971), 5 ccc (2d) 49 (Sask. CA); Re Katie's Adoption Petition (1961), 38 WWR 100; Re Beaulieu's Petition (1969), 67 WWR 669; Re Deborah, [1972] 5 WWR 203; Re Wah-Shee (1975), 57 DLR (3d) 743. And see Zlotkin, "Judicial Recognition of Aboriginal Customary Law in Canada."

19

Common Law of Self-Government

larger general and inherent power of self-government, however, has not yet been so affirmed as a common law right in Canada. Thus, the great promise of the Connolly trial decision as a general affirmation of the aboriginal right of self-government arguably was undermined in the Court of Appeal. From this perspective the persistence of the Canadian native marriage and adoption power, rather than demonstrating the existence of a general and inherent power of selfgovernment, underscores the absence of that larger power. There is no body of domestic case law in Canada affirming the general power, to complement the marriage and custody cases. The leading nineteenth century Canadian case commenting directly upon the aboriginal right of self-government (not weakened on the point, on appeal) was Sheldon v. Ramsay.^ In that 1852 decision of the Upper Canada Court of Queen's Bench, Burns J. said: It never can be pretended that these [Six Nations Tribe of] Indians while situated within the limits of this province, as a British province at least, were recognized as a separate and independent nation, governed by laws of their own, distinct from the general law of the land, having a right to deal with the soil as they pleased; but they were considered as a distinct race of people, consisting of tribes associated together distinct from the general mass of the inhabitants, it is true, but yet as British subjects, and under the control of, and subject to the general law of England. As regards their lands on the Grand River, the Indians had no national existence nor any recognized patriarchal or other form of government or management, so far as we can see, in any way.16 "(1852), 9 UCR 105 (QB). The issue before the court in Sheldon v. Ramsay was whether the lands supposedly belonging to one Mallory should be forfeited to the crown for that person's treason. Mallory was not a native. The land specifically in question had been leased to him by Joseph Brant supposedly on behalf of the Six Nations Indians. The court held that the land was not forfeit, since the authority of Brant to lease it on behalf of the Indians was not established by evidence, and second since the Indians did not have the legal fee simple title but only the use of the land. The forfeiture provisions in the relevant legislation affected only the fee simple title. The quoted passage from the reasons of Burns j. upon the subject of the political status of the Indians was gratuitous and unnecessary to his decision, though of interest 16 Ibid., at 133-4 (emphasis added). Indians, furthermore, have always been regarded as citizens and subjects, in Canada: An Act the Better to Protect the Mississauga Tribes Living on the Indian Reserve of the River Credit, in Their Exclusive Right of Fishing and Hunting Therein, s Prov. uc 1829, c. 3, ss. 1, 2; An Act to Encourage the Gradual Civilization of the Indian Tribes in This Province, and to Amend the Laws Respecting Indians, s Prov. c 1857, c. 26, s. 1; esc 1859, c. 9, s. 1; sc 1868, c. 42; Campbell v. Hall (1774), 98 ER 848, 895; Donegani v. Donegani (1835), 1 LRAC 50 (PC), 77; Gibb v. White (1870), 5 Practice R. 315 (Ont.), 317; Sanderson v. Heap (1909), 11 WLR 238, 240; Sero v. Gault (1921), 50 OLR 27, 33-4; Prince v. Tracy (1913), 13 DLR 818, 812 (Man.); Logan v. AG Can., [1959] OWN 361, 362; R. v. Gingrich (1958), 29 WWR 471, 474 (Alta. App.

20

Native Liberty, Crown Sovereignty

The reference in that passage to "a distinct race of people" captured the nineteenth century essence of the Canadian domestic judicial approach. This has been to conceive of the Indians as a racial class rather than as a political class. As the Supreme Court of Canada observed in A.G. Can. v. Canard in 1976, "Section 91(24) of the British North America Act gave to the Parliament of Canada exclusive legislative jurisdiction over the subject of 'Indians, and Lands reserved for the Indians.'"17 That allocation of power in favour of the federal government was then held to have been based upon the recognition of Indians as a separate legal "class" of persons: 'The subject-matter defined in s. 91 (24) necessarily contemplates legislation respecting the status and rights of a particular class of persons. If the words 'equality before the law' in s. 1 (b) of the Bill of Rights were to be construed as precluding legislation of this kind it would prevent Parliament from exercising the power entrusted to it by s. 91(24)."18 Significantly the court then went on to hold that not only did the law contemplate the separate existence of a "particular class of persons" for legal purposes, but furthermore this was a "racial" classification. It said: "The legislative history of the western world has recognized a great diversity of status among which those of married women, infants, aliens, villains, nobles, slaves, oudaws, merchants, illegitimate children, lunatics, bankrupts, clerics, etc. Flowing from status are special rights, duties, privileges or incapacities which are the consequences of status and which are sometimes called its incidents."19 And furdier, "The British North America Act, 1867, under the authority of which the Canadian Bill of Rights was enacted, by using the word 'Indians' in s. 91(24), creates a racial classification and refers to a racial group for whom it contemplates the possibility of special treatment."20 Div.). In the United States, in contrast, Indians were not, until this century, accounted citizens and subjects: People v. Dibble, 18 Harbour's SCR 412, 413 (NY, 1854); Reynolds, 5 Dillon Crt Ct R 394, 398 (Ark., 1899); Holland v. Pack, S Martin & Yerger 119 (sc Tenn., 1823); Goodell v. Jackson, 20 Johnson R 693, 709-15, 717-18 (NY Ct E, 1823); Cherokee Nation v. Georgia, supra note 7, at 66 (1831). And see Newton, "Status of Native American Tribal Indians Under United States Law," 84, note 32, which says "Indians are citizens of the United States, and of the state in which they reside, us. Const, amend, xrv, #1. Despite the Constitution's apparently clear language, United States law did not recognize all Indians as citizens until 1924 when the national legislature granted all Indians citizenship. Act of June 2, 1924, ch. 233, 43 Stat. 253." "[1976] 1 SCR 170, 176, per Martland j. 18 Ibid., at 187. !9 Ibid., at 204, per Beetz j. 20 Ibid., at 207 (emphasis added).

21

Common Law of Self-Government

Although the 1852 statements by Burns J. in Sheldon were obiter dicta, that Supreme Court of Canada ruling was not mere obiter dicta. The issue squarely before the court was the allegation that certain legislation dealing with estates of deceased Indians was ultra vires on the specific ground that it discriminated against a class defined by race, and that such discrimination contravened the principle of equality expressed in the Bill of Rights. The court agreed that the legislation discriminated on the basis of class defined by race, but held that this was nevertheless valid since it fell squarely under section 91(24) of the imperial government's Constitution Act, 1867 which prevailed over any contrary provision in the federal government's Bill of Rights. Constitutional legislation was thus considered paramount to domestic legislation, as strict law requires. The court might have sidestepped the racial issue, but rather than do so it held racial differentiation to be the essential legal point. It could, for example, have arrived at the same result by saying that section 91 (24) was referring to "Indians" as a political concept rather than as a racial concept. That in similar situations has been the position adopted by the Supreme Court of the United States. Professor C.F. Wilkinson thus wrote:21 "As first explained in Morton v. Mancari, special federal programs benefiting Indians can be justified constitutionally because the classifications are not racial, the programs may go to individual Indians, but those Indians are properly viewed not as members of a race but as citizens of a government with whom the United States has a special gpvernment-to-government relationship." 22 Professor Wilkinson had referred to the American Supreme Court's ruling in the 1974 case of Morton v. Mancari which had held that the hiring preference of the Bureau of Indian Affairs (BIA) "as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion ... As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed."23 That American rationale, pointedly rejecting racial classification in favour of political classification as the ground for the law's special treatment of Indians, was decided in 1974, just two years before the Supreme Court of Canada's contrasting stand in the Canard case. That ideological difference in the respective approaches taken by Canadian and American courts has had an important bearing upon 21

Wilkinson, American Indians, Time, and the Law. ^Ibid., at 85-6 (emphasis added). 2 '417 u.s. 535, 554-5 (1974).

22

Native Liberty, Crown Sovereignty

the question of the existence of an inherent aboriginal right of selfgovernment constituted domestically at common law. It was precisely because the Indians were considered as "a distinct race of people" rather than as a political entity with a "national existence" that Burns j. in Sheldon v. Ramsay had suggested in 1852 that the Indians were not governed by their own laws.24 This viewpoint was confirmed by Riddell J, in 1921 in the second Canadian case historically to have dealt with and to have in obiter comments rejected the alleged inherent right to self-government in domestic common law. Thus in Sero v. Gault25 Riddell J. held: It is well-known that claims have been made from the time of Joseph Brant [the Six Nations Indian chief who played an important role as a Captain on the British side in the American Revolutionary War, and who led the Six Nations emigrants to Upper Canada at its end] that the Indians were not in reality subjects of the King but an independent people - allies of His Majesty - and in a measure at least exempt from the civil laws governing the true subject. "Treaties" have been made wherein they are called "faithful allies" and the like, ... As to the so-called treaties, John Beverley Robinson, Attorney-General for Upper Canada (afterwards Sir John Beverley Robinson, cj.), in an official letter to Robert Wilmot Horton, Under Secretary of State for War and Colonies, March 14, 1824, said: 'To talk of treaties with the Mohawk Indians, residing in the heart of one of the most populous districts in Upper Canada, upon lands purchased for them and given to them by the British Government, is much the same, in my humble opinion, as to 24

Supra note 15. For a contrary (though undocumented) opinion, see Williams, "Canada's Laws About Aboriginal Peoples: A Brief Overview," at 105, in which Williams said "Indian rights, and laws relating to Indians, in the past have been considered to flow from the rights of Indian nations, and their political identity." But compare this same author in the same article (at 93), in which he stated "[T]his [Canadian constitutional approach] is based more upon race than upon the political realities and upon history." Williams concluded (at 105), "If the rights of some Indians are now to be seen as based upon their race rather than their citizenship [as members of bands], the concept of Indian status, and of Indian rights, could be vulnerable to attack on the basis that it discriminates on the basis of race." That opinion is untenable, in the light of AG Can. v. Canard, supra notes 17 through 20. 25 (1921), 50 OLR 27. In Sero v. Gault the question was whether Indians while off their reserve were exempt from the general law prohibiting fishing with seine nets without a licence. The issue concerned a claim for a personal exemption that was not conceived in relation to the aboriginal right of self-government upon yet-unceded territory. Since it was an off-reserve issue, the comments made by Riddell j. relative to the application of laws of general application were gratuitous and unnecessary so far as on-reserve lands are concerned. Even so, since a "crime or offence" was involved he arguably may have been right. See chapter 4 under the heading "The Crimes and Offences Exception."

23

Common Law of Self-Government

talk of making a treaty of alliance with the Jews in Duke Street or with the French emigrants who have settled in England." Canadian Archives, Q_. 337, pt. ii, pp. 367, 368. I cannot express my opinion more clearly or convincingly ... I can find no justification for the supposition that any Indians in the Province are exempt from the general law - or ever were ... Admittedly all parties to this action were born within the allegiance of the Crown; and indeed if they were not, they could claim no higher rights than those who were: Blackstone, Comm. bl. 1, pp. 369, 370; Halsbury's Laws of England, vol. 1, p. 306.26 The 1970s idea that the Indians were "citizens plus,"27 with the right to be governed by their own laws instead of by the laws of general application in society at large, was therefore apparently rejected in 1852 by Sheldon and in 1921 by Sero. This traditional domestic Canadian court position was seemingly confirmed in 1974 when the Supreme Court of Canada held in Cardinal v. AC Alia, that there were no "enclaves within a Province within the boundaries of which Provincial legislation could have no application ... even though Indians or Indian Reserves might be affected by it."28 This rejection of enclaves was itself confirmed by the Supreme Court of Canada in the 1979 case Four B. Manufacturing Ltd. \. United Garment Workers of America, in which Beetz J. held, The enclave theory has been rejected by this court in Cardinal v. The Attorney General for Alberta, [1974] 1 s.C.R. 695, and I see no reason to revive it even in a limited form."29 26

Ibid., at 31-3. In that case Riddell j. was dealing specifically with the Six Nations Indians who derived their Indian interest in Canada after they emigrated from the United States, having sided with the British in the revolutionary war. Governor Simcoe of Upper Canada in 1793 granted them a large tract of land on the Grand River in southern Ontario which the crown had purchased from the Mississauga Indians for that purpose. The rights of the Six Nations Indians, it has been settled, are the same as those of other Indians in Canada, as defined under the Royal Proclamation of 1763: Isaac v. Davey (1974), 5 OR (2d) 610 (CA), 621; Feganv. Mcljan (1869), 29 UCQB 202, 204; Ontario Mining Co. v. Seybold (1901), 32 SCR 1, 3; Sown v. West (1846), 1 Grant's E & AR 117, 118; Jackson v. Wilkes (1835), 4 UCR 142, 150-1. "Indian Chiefs of Alberta, "Citizens Plus," "Indians should be regarded as 'Citizens Plus.' In addition to the normal rights and duties of citizenship, Indians possess certain additional rights as charter members of the Canadian community." 28 [1974] SCR 695, 703 (emphasis added). This anti-enclave doctrine is an undeniable domestic common law principle. It cannot, however, be taken to rule out or preclude legislative recognition of enclaves under constitutional legislation enacted by the imperial government which was not considered in any of these cases: see the second part of chapter 4 under the heading, "Responsible Government and Enclaves." 29 (1979), 30 NR 421, 429. (Laskin j. dissented) (emphasis added).

24

Native Liberty, Crown Sovereignty

The Canadian rejection of the enclave theory for domestic law purposes is radically different from the position occupied by the American courts. Once the American courts had recognized the essential political (but not racial) basis for aboriginal rights, it became appropriate for them to define territorial limits (that is, enclaves) within which the Indian political power could be exercised. Professor Wilkinson has commented upon the American position: The resolution of these issues [involving the definition of an Indian territory or Indian country] has had a settling effect because it is typically the territorial concept embodied in the definition of the Indian country that triggers the special principles of [American] Indian law. This was made clear in a pair of companion cases in 1973, McClanahan v. Arizona State Tax Comm'n30 and Mescalero Apache Tribe v. Jones.51 The state tax in McClanahan was levied in Indian country and was struck down. The taxes in Mescalero Apache were sought to be applied outside of Indian country. The Court effectively found that Indian law is mostly territorially based, that it is not personal law. Distinguishing McClanahan, the court found that "tribal activities conducted outside the reservation present different considerations ... Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State."32 The importance of this recognition "that Indian law is mostly territorially based, that it is not personal law" is apparent when one considers the far-reaching consequences of the American position. Summarizing this position, Wilkinson observed: Cohen's33 conclusion that inherent tribal sovereignty is "perhaps the most basic principle of all Indian law" is right. The acceptance of the doctrine, and the renunciation of the concept that tribal powers are delegated from the United States, lays the conceptual outlines for the field. Although not all ramifications of the following issues are resolved by the tribal sovereignty doctrine, the Marshall-Cohen view, as accepted in modern times by Wheeler,34 and later cases, decides or directly implicates each of the following central issues. First, tribal powers are defined initially by looking to the entire store of authority possessed by any nation, not by searching for federal statutes

"Mil u.s. 164 (1973). 31 411 u.s. 145 (1973). 32 Ibid., at 148-9 (emphasis added). From Wilkinson, supra note 21, at 92.33 Strickland and Wilkinson, Cohen's Handbook. M i/.s. v. Wheeler, 435 u.s. 313 (1978).

25

Common Law of Self-Government

establishing tribal prerogatives.35 Second, Indian tribes possess sovereign immunity.36 Third, tribes can exert regulatory authority over landowners within tribal territory because tribes are governments, not just proprietors." Fourth, limits on the powers of states and the United States in the Constitution do not restrict Indian tribes.88 Fifth, tribal existence depends on the tribe's own will, not on recognition by the United States.59 Sixth, since tribes are separate sovereigns, general grants of federal jurisdiction do not allow for review of tribal actions.40 Seventh, tribes possess the inherent authority to adopt regulatory laws without the approval of the Department of the Interior.41 Eighth, tribal courts, as the judicial arms of the local sovereigns in Indian country, are the proper courts to develop the factual records in the first instance when the extent of tribal authority is challenged in federal court.42 Ninth, tribal resource rights are measured in part by looking to the intent of the tribes - as inherent sovereigns possessing such rights before relations with the United States - at the time treaties or agreements were negotiated with the United States.4' Last, the fact of independent governmental authority allows courts to draw analogies between tribes and cities, states and even the United States in order to justify exercises of tribal powers.44

By rejecting the enclave theory as a domestic common law proposition, did the Supreme Court of Canada implicitly reject these crucial attributes of tribal sovereignty? This issue can be focused by concentrating upon the word "existing" which was employed in section 35 of the Constitution

35

For example, Merrion v. Jicarilla Apache Tribe, 455 u.s. 130, 141 (1982); Washington v. Confederated Tribes of the Colville Indian Reservation, 477 u.s. 134, 153 (1980). For example, Santa Clara Pueblo v. Martinez, 436 u.s. 49, 58 (1978); Puyallup Tribe, Inc. v. Department of Game, 433 u.s. 165, 172-3 (1977). "Merrion v. Jicarilla Apache Tribe, supra note 35, at 144-8, dissent at 160, 173; Montana v. u.s., 450 u.s. 544, 565-6 (1981). ^Santa Clara Pueblo v. Martinez, 436 u.s. 49, 56 (1978); Talton v. Mayes, 163 u.s. 376, 384 (1896). 39 For example, u.s. v. John, 437 u.s. 634, 651-4 (1978); Menominee Tribe v. u.s., 388 F 2d 998, 1000-1 (Ct Cl, 1967), 391 u.s. 404 (1968); Kimballv. Callahan, 590 F 2d 768, 775-6 (9th Cir.), cert, denied, 444 u.s. 826 (1979), cited in Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe, 105 S Ct 3426 n. 12, 3428 n. 18 (1985); Joint Tribal Council of the Passamatfuoddy Tribe v. Morton, 528 F 2d 370, 377-8 (1st Cir., 1975). """For example, Santa Clara Pueblo v. Martinez, supra note 38, at 66-70. 4l Kerr-McGee Corp. v. Navajo Tribe, 105 S Ct 1900 (1985). 42 National Farmers Union Ins. Co. v. Crow Tribe, 105 S Ct 2447, 2454 (1985). 43 For example, Washington v. Washington State Commercial Passenger Fishing Vessel Ass •n, 443 u.s. 658, 675-9 (1979); Winters v. United States, 207 u.s. 564,576-7 (1908). ""For example, Merrion v. Jicarilla Apache Tribe, supra note 35, at 137, 147-8; Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 54 USLW 4654, 4658 (1986). From Wilkinson, supra note 21, at 62-3. 56

26

Native Liberty, Crown Sovereignty

Act, 1982.45 Section 35(1) said, "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed [emphasis added]." The same word "existing" also appeared in section 16 of the American Indian Reorganization Act of 1934:46 Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, ... In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments [emphasis added]. The word "existing" as used in section 16 of the Indian Reorganization Act of 1934 was construed by the Supreme Court of the United States in 1980 in Washington v. Confederated Tribes of Colvitte.^1 In that case the court upheld the Indian power to tax non-Indians as an implicit incident of the inherent right to raise funds in furtherance of the exercise of the common law right of self-government. That inherent right was held never to have been expressly taken away, but rather was said to have been confirmed by the word "existing": No federal statute cited to us shows any congressional departure from this view. To the contrary, authority to tax the activities or property of non-Indians taking place or situated on Indian lands, in cases where the tribe has a significant interest in the subject matter, was very probably one of the tribal powers under "existing law" confirmed by 16 of the Indian Reorganization Act of 1934, 48 Stat. 987, 24 u.s.c. 476 ... In the present cases, we can see no overriding federal interest that would necessarily be frustrated by tribal taxation. And even if the State's interests were implicated by the tribal taxes, a question we need not decide, it must be remembered that tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.48 ^Being schedule B of the Canada Act 1982 (UK), 1982, c. 11, s. 11. '"Oh. 576, 48 stat. 987 (1934); codified (as amended) at 25 use 461-79 (1982). "447 us 134, 152-4 (1980). Applied, Merrion v. Jicarilla Apache Tribe, 455 u.s. 130, 137 (1982): The [Indian] power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self government and territorial management." 48 Ibid. (emphasis added). The fact that American Indian tribal sovereignty is subject to "the Federal Government, not the States" is crucial. It means that

27

Common Law of Self-Government

The argument has been raised elsewhere that the use of the word "existing" in the phrase "existing aboriginal rights" in the Canadian constitution has the same import as the court in this Colville case attributed to "existing" as used in the American Indian Reorganization Act of 1934.49 Upon this view, "existing" refers to the plenary attributes of tribal sovereignty itemized by Professor Wilkinson above. However, "existing" in the American statute referred to the position in American domestic common law. No similar domestic common law position has been formulated by the domestic courts in Canada. Therefore, in the Canadian constitution "existing," if it is to refer at all to the aboriginal right of self-government, must refer to a basis other than a domestic common law basis such as is identifiable in American jurisprudence. The argument advanced in the remaining chapters is that legislation of the imperial government and colonial law precedents of British courts have emerged to fulfil the same function as the domestic common law accomplished in America. In Canada, "existing" related back to this imperial tradition, whereas in the United States it related back to a domestic common law tradition. In none of the domestic Canadian cases have the Canadian judges ever addressed the imperial precedents and legislation that confirm the existing aboriginal right of self-government for constitutional purposes. In spite of the preceding analysis, one would not wish to contend that it would be impossible for a Canadian court in future to identify a domestic common law basis for the aboriginal right of self-government. Even though Hall J. of the Supreme Court of Canada in 1973 was dissenting in the result in Calderv. AGforBC, he did say, "This important question remains: were the rights either at common law or under the Proclamation [of 1763] extinguished?"50 The difficulty lies in identifying the body of "existing" Canadian case law capable of substantiating the inference that a domestic common law right of aboriginal selfgovernment in particular had in fact been constituted. Hall J. did not himself purport to constitute such a right in the Calder case. Nor

49

M

if American Indian common law applied in Canada, Canadian aboriginal peoples would not be protected as against the federal government in their right of self-government. The federal government has enacted that Indians are subject to provincial law: Indian Act, RSC 1970, c. 1-6, s. 88. Thus, if the aboriginal peoples have an independent right of self-government, then that right must be identified in constitutional instruments binding upon both federal and provincial governments rather than merely upon the basis of domestic common law. This point is elaborated in the text later on; see text following note 69.

Clark, Indian Title in Canada, at 108.

[1973] SCR 313, 401 (emphasis added).

28

Native Liberty, Crown Sovereignty

did he identify the other precedents and legislation that cumulatively confirm that right for constitutional purposes. Although there does not appear to be a home-grown Canadian precedent (discounting the trial level decision in Connolly v. Woolrich)51 upon which presently to build an argument favouring the historic existence of a domestic common law aboriginal right of selfgovernment, some succour might conceivably be found in a Privy Council ruling applicable to Connecticut before the American revolution. Being pre-revolution, the case is neither "American" nor "Canadian" in any parochial sense, but may rather enunciate a principle of imperial law capable of being a precedent in Canada. On 15 January 1773, the Privy Council in Great Britain in the exercise of its appellate jurisdiction issued an order in council that had the effect of recognizing that the Mohegan Indians were "juristically regarded as sovereign."52 The case was Moheganv. Connecticut. Two classic arguments had been formulated. One favoured Indian self-government. That argument, confirmed by the Privy Council, expressed the same viewpoint as eventually found favour in Worcester v. Georgia.53 The second of the classic arguments formulated in Mohegan was propounded by William Samuel Johnson, counsel on behalf of Connecticut. This argument, which opposed self-government, was not in fact accepted by the Privy Council. The argument presented by Johnson was the progenitor or at least the precursor of the line eventually taken by the Canadian courts in Sheldon v. Ramsay54 and Sero v. Gawft.55 Johnson's argument was that the Idea of the Mohegans being a separate or sovereign state would, in America [remember, this is pre-revolutionary British America], where the State and conditions of the Indians is known to everybody might expose Majesty and Sovereignty to Ridicule, might be of dangerous Consequences, and not to be suffered in a Court of Justice etc. When the English Treated with them [the Indians] it was not with Independent States (for they had no such thing as a Civil Polity, nor hardly any one Circumstance essential 51

Supra note 5. And See Guerin v. A, [1984] 2 SCR 335, 377, in which Dickson j. appeared to suggest that aboriginal rights can exist even when a constituting instrument cannot be identified. 52 Smith, Appeals to the Pri-vy Council, 442. The case under review, Mohegan v. Connecticut, is analysed in detail later in this chapter. Its status as a precedent is complicated. It came before the Privy Council as a review of a decision taken by a royal commission established to investigate certain Indian complaints. 55 Supra note 4. 54 Supra note 15. "Supra note 25.

29

Common Law of Self-Government

to the existence of a state) but as with savages, whom they were to quiet and manage as well as they could, sometimes by flattery, but oftener by force. Who would not Treat if he saw himself surrounded by a company of Lyons Wolves or Beasts whom the Indians but too nearly resembled, ready to fall upon him and even call them friends and allies too, if he thought it would for a moment repress their Rage, and give him time to take measures for his security; but you would not therefore immediately call them an independent State (though Independent enough God knows) because they hunted the same Forest or Drank at the same Brook. The Gentlemen [counsel arguing the Indian case] should have given some definition of a State or Commonwealth, it would then have appeared how far these Indians fall short of that Character. It is true, indeed, that the English have taken Infinite Pains to Civilize and Christianize the Indians, and they sometimes flattered themselves with hopes of success, and that they should by degrees make them Men and Christians, but after all their Endeavours (except in a very few Instances) they remain but litde superior in point of Civilization, to the Beasts of the Field. This notion of their being free States is perfectly ridiculous and absurd. Without Polity, Laws etc. there can be no such thing as a State. The Indians had neither in any proper sense of the words. It is also Inconsistent with their own Ideas that they were always under the Guardianship of [persons holding lands in trust for the Indians].56 The parallel to Johnson's argument, particularly regarding the point that treaties do not evidence any legal recognition of Indian governmental independence, clearly can be found in the words of John Beverley Robinson (attorney general and later chief justice of Upper Canada) approved and adopted by Riddell J. in Sew v. Gault.^ Since the argument was rejected by the Privy Council, it could, therefore, be submitted that the Canadian cases that adopted the same argument are bad law upon the principle of stare decisis (that is, of abiding by decided cases). Furthermore, in an arbitration decision (admittedly not a decision capable of constituting a precedent) Boyd, chancellor of the Ontario Court of Chancery, in 1895 seemed to adopt the kind of reasoning employed by the Privy Council in the Mohegan ruling instead of die kind of reasoning employed by counsel for the state such as has implicitly been endorsed in the leading Canadian cases. The chancellor said, 56

Supra note 52, at 434-5. Smith here quoted from the argument of counsel (MS Conn. Archives, 2 Indians, #277 a, b). For more regarding the general philosophies informing such arguments see generally Meek, Social Science and the Ignoble Savage; and Bieder, Science Encounters the Indian, 1820-80. "Supra note 25.

30

Native Liberty, Crown Sovereignty

"Now in these [treaty] transactions with the aborigines from the earliest colonial times in North America, the Government has assumed the status of the Indian tribes to be that of distinct political communities. "58 In this passage, Boyd C. thus recognized the political dimension, whereas the traditional view has, in Canada, stressed the racial dimension. To that extent Boyd C. was in line with the American tradition, but also more importantly with the view taken by the Privy Council in the Mohegan case." Thus this viewpoint expressed by Chancellor Boyd of Ontario could be tendered as a counterweight to the contrary view expressed by justices Burns and Riddell, also of Ontario. One could then set beside Chancellor Boyd's comment a statement made by Ontario Justice of Appeal Patterson in 1886 that "[the Indians] were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it and to use it according to their own discretion. In a certain sense they were permitted to exercise rights of sovereignty over it."60 Furthermore, and notwithstanding the relative absence of existing domestic common law "precedents" in Canada, the potential represented by the common law always remains because of the peculiar genius of the common law to create law retroactively. The common law is rather like an iceberg: the tip is that portion already declared by courts. Underneath the surface reposes an unascertained set of principles and sentiments which for practical purposes can come to dominate the horizon whenever the courts in future should bring what is beneath the surface into view. The fascinating thing about this common law process is that whenever the judges eventually do declare the law, the unmistakable impression is that the law was always there, only waiting for them to recognize and affirm its existence. In this way the common law oversteps the trip-wires of the past and thejudges can redress the dynamic balance between fairness and certainty that constitutes their great responsibility. The point of this for present purposes is that important shadows exist just beneath the surface, which may represent an as yet unfufilled potential role for the common law in relation to the aboriginal right of self-government. In 1989 the Supreme Court of Canada set the stage for this when in the case of Wewayakum Indian Band v. Canada61 it held that "the 58

Re Indian Claims: An Arbitration Award, Public Archives Canada, Record Group 10, vol. 2546, file 111834, pt. 1, at 13 (emphasis added). w Supra note 52. 60 St Catherine's Lumber & Milling Co. v. a (1886), 13 OAR 148, 169 (emphasis added). Patterson J.A. was quoting, with approval, from Story's Commentaries on American Law, and applying this to the Canadian context. 61 (1989), 92 NR 241; [1989] 1 SCR 332. Sub nom. Roberts v. Canada.

31

Common Law of Self-Government

law of aboriginal title is federal common law."62 The court in that case was not dealing directly with the aboriginal right of self-government in particular. Rather, it was considering whether the Federal Court of Canada had jurisdiction to hear a case between two Indian bands and the federal government, over which band had the better right to possession of a particular Indian reserve. The court held that jurisdiction existed in part because a "law of Canada" was integral to the dispute, namely "the law of aboriginal title" which the court held to be "federal common law." The potential of this Wewayakum case relative to the aboriginal right of self-government arises from the specific reasoning employed by the court. Madame Justice Wilson, speaking for the court, said: In Calderv. Attorney General of British Columbia, [1973] S.C.R. 313, this Court recognized aboriginal title as a legal right derived from the Indians' historic occupation and possession of their tribal lands. As Dickson, J. (as he then was), pointed out in Guerin, supra [Guerin v. The Queen [1984] 2 s.C.R. 335], aboriginal tide pre-dated colonization by the British and survived British claims of sovereignty. The Indians' right of occupation and possession continued as a "burden on the radical or final tide of the Sovereign": per Viscount Haldane in Amodu Tijaniv. Southern Nigeria (Secretary), [1921] 2 A.C. 399 (P.C.), at 403."

This rationale can be applied to the aboriginal right of self-government no less than to the aboriginal right of possession of tribal lands. Both rights stem from what Madame Justice Wilson has identified as "the Indians' historic occupation and possession of dieir tribal lands." Both rights "pre-dated colonization." From this equivalence, one can see that aboriginal title to land has two complementary aspects - possessory and governmental. And if the possessory aspect "survived British claims of sovereignty," the question becomes, is there any reason why its governmental counterpart would not also have survived? If the one exists implicitly as a matter of common law, is there a valid reason for denying its alter ego, for it can persuasively be submitted that the whole point of aboriginal title was to leave aboriginal peoples in possession so that they could continue governing themselves. Possession and governing, from this perspective, are complementary aspects of a unified concept, and to grant the one is implicitly to grant the other. 62

Ibid., at 262. Ibid.

6S

32

Native Liberty, Crown Sovereignty

The historic significance of Wewayakum is that it thus implicitly recognized a right continuously in existence since aboriginal times. The Constitution Act, 1982 came into force on 17 April 1982. The right will therefore have been "existing" as at 17 April 1982, within the meaning of the phrase "existing aboriginal rights" employed by section 35 of the Constitution Act, 1982, even though the declaration by the court affirming the right came after that date, thereby reflecting that ability of the common law to create law retroactively. This probability is discussed more fully in the next section of this chapter, dealing with the constitutional import of the Wewayakum case. The objective here is only to assess the Wewayakum case specifically as a domestic common law precedent defining the alleged right, and in this connection the case represents potential more than achievement. There is thus but a thin argument in favour of identifying an existing "precedent" to ground a Canadian aboriginal right of self-government at domestic common law. It involves resurrecting a 1773 Privy Council decision hitherto never judicially noticed in the domestic law context, bolstering that with an arbitration comment, relying upon an isolated aside by an appeal court judge, and finally extrapolating from a recent Supreme Court of Canada decision which really was focused upon a much narrower jurisdictional issue. The overall conclusion herein has therefore been that although it is accurate to speak in terms of an American domestic common law aboriginal right of selfgovernment, at the present time it would be overreaching64 to do so in the Canadian context. It is with some trepidation, however, that one arrives at this conclusion that the domestic common law is not a secure source for the existing aboriginal right of self-government in Canada. It has become a truism - a virtual article of faith within the Canadian establishment concerned with native rights - that the domestic common law at least constitutes a negotiating position, a lever with which to prise tangible "Supra note 2. At 736-41, the Canadian Bar Review article by Dr Slattery deals with the subject of the common law doctrine of aboriginal rights (under that heading), and infers the existence of constituted rights upon the basis of less common law precedent than has been considered and discounted in the present chapter. The assumption seems to be that identifying a domestic common law source of aboriginal rights will be an advantage to Indian self-government. In fact, it is as likely to be prejudicial: see, for example, Ball, "Constitution, Court, Indian Tribes," at 12: The Court has never held a congressional exercise of power over Indian tribes to be illegal, and there is no reason to think it ever will." The domestic common law, unlike the written law of the Constitution, can afford no real protection against federal and provincial legislative encroachments upon the alleged aboriginal right of self-government.

33

Common Law of Self-Government

concessions out of the federal government in favour of increased autonomy. In some regions, such as British Columbia, the fear is that the domestic common law may be the only bastion protecting the aboriginal right of self-government. Nevertheless, sentiment alone cannot create domestic precedents, and the domestic precedents simply do not yet exist in the historical record. Nor can one confidently allege the existence of a practice respecting the native right upon which to base a new ground-breaking common law decision in a case of first instance. Indeed, both the practice and the domestic legislation have patently operated upon the assumption that no existing aboriginal right of self-government stands in the way of the federal and provincial legislative powers. The prevalent assumption has been that the whole field of legislative jurisdiction is fully accounted for in the constitutional division of powers between the federal and provincial governments alone. There is little credible basis for alleging the existence of a domestic common law right based upon practice any more than upon established precedent. Even more to the point is the fact that even if the common law right were established in domestic law, it could not survive long enough to take a second breath. It has been overridden or superseded by contrary domestic legislation. The cornerstone of the English and Canadian legal systems is the supremacy of Parliament. Thus the common law governs only so long as Parliament has not spoken directly to a given point, but when Parliament does speak its definition of the law governs.65 For this reason, the British Columbia Provincial Court judge was technically correct when he held in the hypothetical that if a provincial government enactment had federal parliamentary authority, "then the Wildlife Act would indeed have extinguished any common law aboriginal right of the Indian people of Gold River to hunt elk on unoccupied crown land adjacent to their reservation."66 Having ruled out the domestic common law as a basis for vindicating the aboriginal right to hunt, when in conflict with a domestic act of the federal Parliament, the court in R. v. Dick nevertheless upheld the aboriginal right to hunt because of section 35 of the Constitution Act, 1982.67 That is, the court rightly confirmed the paramountcy ranking: constitutional legislation is greater than domestic legislation, which is greater than common law. The difficulty presented by R. v. Dick is that the court failed to deal fully with the word "existing" in section 35. It was held that: ^Kielley v. Carson (1843), 4 Moo. p.c. 63, 88. 66 fl. v. Dick, [1989] 1 CNLR 132 (BC Prov. Ct), 137 (emphasis added). 67 Ibid.

34

Native Liberty, Crown Sovereignty

The right of Indian people to hunt and fish for food was recognized, even if it was not honoured, by succeeding governments of this province up to the time of Confederation. At that time Indian affairs constitutionally became a federal matter, beyond the jurisdiction of the province. And now, pursuant to s. 35 of the Constitution Act, 1982, so long as- the claimed right can be sufficiently identified as to place and persons it is protected.68

Since section 35 is in terms of protecting "existing" aboriginal rights, it is incumbent on the right's proponents to establish that the aboriginal right in question had been constituted before the coming into force of section 35, on 17 April 1982. In the Dick case the judge opaquely said that the aboriginal right in question "was recognized, even if it was not honoured." The identity of the law supposedly constituting the right, for legal purposes, was never identified however. The judge appeared to rely only upon colonial correspondence (which of itself can have no constituting force), and upon an unreported provincial court decision in 1988 which at most could constitute only a domestic common law right.69 Upon that inadequate basis, the court then concluded that the aboriginal right in question survived in spite of the contrary legislation, on the ground that "[o]nce such a right is found to be vested in a specific Indian society and the claimant places himself within that society and on the right land, that right cannot be abrogated by legislation."70 If the judge was relying only upon the referenced colonial correspondence and the unreported provincial court case, then he is saying in effect that domestic common law is greater than the domestic legislation, which contradicts his undeniably correct earlier ruling that domestic legislation is greater than domestic common law. The submission here is that Dick is correct only if one takes account of certain constitutional legislation applicable to British Columbia before the coming into force of section 35. The case cannot be taken as a vindication of the domestic common law over domestic legislation, since that would be contrary to the doctrine of the supremacy of Parliament, as the court itself recognized. Although the court in Dick did not identify the constitutional legislation that rendered the native right in question "existing," as the remaining chapters of this study demonstrate such legislation does exist. Thus the case was rightly decided, even though the reasons assigned by the judge fell short of justifying his decision. 68

Ibid.

M Ibid. 70

Ibid.

35

Common Law of Self-Government

A fuller appreciation of the reason the domestic common law standing alone is such a paper tiger depends upon an awareness of section 88 of the Indian Act.71 The domestic common law speaks when the federal Parliament is silent, and in virtue of section 88 Parliament has spoken. Section 88 establishes the general rule that provincial laws of general application apply to "Indians." This is a federal statute, which itself makes provision for Indian government in restricted circumstances.72 Thus the "statute law" domestically provides for Indian government in specified circumstances, beyond which normal provincial laws apply equally to Indians. Such provincial laws speak to virtually every conceivable civil law issue. No field is left unoccupied upon which a residual and competing Indian jurisdiction might for pragmatic purposes operate. That, at least, is the situation when only the domestic statute law and the domestic common law are addressed. That is, even if the aboriginal right of self-government existed at domestic common law, then by virtue of section 88 (and quite possibly earlier given the Canadian judicial decisions reviewed in this chapter) any such domestic common law Indian right had been nullified before section 35 of the Constitution Act, 1982 came into force on 17 April 1982. If, therefore, the right of self-government is to be established as an existing aboriginal right, then an alternative basis for it must be demonstrated in lieu of the ineffectual domestic common law basis. This alternative basis must be of constitutional and not just domestic force, since if it is to constitute the aboriginal right as an existing aboriginal right within the meaning of section 35 of the Constitution Act, 1982, it has to overcome the pre-section 35 effect of section 88 of the Indian Act. Just as the domestic common law is subordinate to the domestic statute law, the domestic statute law is subordinate both to constitutional statute law and constitutional common law precedents. This then is the pragmatic reality: the domestic common law basis for the aboriginal right of self-government is a false hope: at best an exercise in futility, at worst a threat to the constitutional integrity of aboriginal peoples' sovereignty. Only a law of constitutional weight can possibly achieve what the domestic common law must inevitably be inadequate to sustain. The question to be addressed in ensuing chapters is the identity of the applicable constitutional laws recognizing the aboriginal right "RSC 1970, c. 1-6. First enacted as section 87 in the Indian Act, sc 1951, c. 29. See also note 48. 72 Ibid., at ss. 60, 69, 81-6, for example.

36

Native Liberty, Crown Sovereignty

of self-government before 17 April 1982. It will then be seen that the imperial statute law and precedents establishing the right also pre-date the domestic section 88 of the Indian Act, such that this domestic law section must be read subject to the previously established and constitutionally protected aboriginal right of self-government. The final point immediately to be addressed is that the American common law at least remains a valuable aid to construction when interpreting the legislation identified in the succeeding chapters as being the recognition and affirmation of the self-government right in Canadian law. This relevance of the American domestic common law cases derives from the historical fact that the same originating British policy that prompted the imperial legislation also induced the American common law position. In other words, the American cases and the Royal Proclamation of 1763 have the same normative basis. This equivalence was recognized by Mr Justice Strong of the Supreme Court of Canada when he observed in 1887 that the law respecting aboriginal rights "either ripened into a rule of the common law as applicable to the American Colonies, or that such a rule had been derived from the law of nations and had in this way been imported into the Colonial law as applied to the Indian Nations."73 For this reason the argument here is that the domestic common law enunciated by the American cases is descriptive of, even though not constitutive of, the constitutional aboriginal right of selfgovernment in Canadian constitutional law. Nor, in retrospect, should it be surprising to historians that the American common law position should be so. All that the American courts have done is to continue the same British colonial policy respecting the natives' sovereignty to unceded lands. That policy produced the Royal Proclamation of 1763.74 However, since the proclamation was a contributing factor to the American revolution, it has not been popular for American courts to refer to it as a basis for rights in American law. For this reason, when Chief Justice Marshall in the leading case of Worcester v. Georgia™ sought to explain the normative basis for Indian rights in America he reached back behind die proclamation to first principles of naturaljustice and pragmatic European politics. He based his decision upon the court's power to constitute domestic common law rights, 75

St Catherines Milling & Lumber Co. v. n, supra note 3, at 616 (emphasis added).

"Colonial law" means colonial constitutional law, in context. RSC 1970, app. ii, no 1, at 127-8 (herein referred to as "the proclamation"). Supra notes 4, 5, and 6. A full exposition of the normative bases in question appears in the passages quoted from Worcester appearing in the text accompanying these notes.

74

7s

37

Common Law of Self-Government

since to have applied the proclamation as a constitutionally relevant instrument in America would have been unpalatable. In doing so, Marshall cj. enunciated the principles that continue to explain the spirit within the constitutional legislation no less than in American common law. The only significant difference, as we shall see in the ensuing chapters, is the strictly constitutional character of the aboriginal right in Canada. Here there has been no need to reinvent the substance of the proclamation in a merely domestic common law form. The American domestic common law cases cited in this chapter, when thus viewed specifically as an aid to construction of the Canadian constitutional legislation, help to establish that the aboriginal right of self-government is also inherent and full. CONSTITUTIONAL COMMON LAW

This section deals with "constitutional" common law, as distinct from "domestic" common law. That is, it deals separately with the judgemade law that delimits constitutional powers, as distinct from private law rights. The courts of the imperial government identified three principles of colonial constitutional law in the late eighteenth and early nineteenth centuries. First, it was recognized that the several nations or tribes of aboriginal peoples were bodies politic for legal purposes.76 Second, the king in council was held to be bound by undertakings formally expressed in public prerogative legislation under the great seal of Great Britain.77 Third, colonial governments were held not to be sovereign; as bodies politic they possessed no inherent legislative jurisdiction, merely a delegated one.78 This case law had the concomitant of further entrenching the prerogative legislation that had independently confirmed the aboriginal right of self-government. The legislation had established that native bodies politic were recognized for legal purposes,79 and that colonial governments did not have jurisdiction legislatively to interfere with the right of self-government vested in these bodies politic in relation to territory that had not been surrendered by a treaty.80 K

Mohegan Indians v. Connecticut (1773), reported upon in Smith, supra note 52, 422-42. "" Campbell v. Hall (1774), 98 ER 848. 78 Cameron v. Kyle (1835), 12 ER 679. "For example, the Royal Proclamation of 1763, RSC 1970, app. n, no. 1, at 127, recognized "the several Nations or Tribes of Indians" for legal purposes. See, chapter 2 The Prerogative Legislation." ^Ibid., at 127-8: "the several Nations or Tribes of Indians ... should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or

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The case law was concerned with general principles of colonial constitutional law. Those principles determine the only way whereby a given colonial government can be shown to have acquired the constitutional capacity to negate this pre-existing independent jurisdiction of the natives to govern their own affairs. The only way is when the imperial government expressly and explicitly gives the colonial government that power. The case law did not address this specific question directly. The courts were not concerned immediately with the aboriginal right of self-government per se. Rather, they were directly concerned with defining the powers of colonial governments in general. But as a necessary consequence of directly settling the general constitutional powers of colonial governments the cases indirectly settled the corresponding powers of the native bodies politic. By explicitly defining in general terms what colonial governments did not have jurisdiction to do, they implicitly confirmed the corresponding native jurisdiction. Since native bodies politic were recognized, since the crown was held to be bound by its own prerogative legislation, since colonial governments were held not to have sovereign inherent jurisdiction, and since no other government was given jurisdiction to govern the affairs of the natives, therefore the indigenous governments were left with that jurisdiction, much as they had exercised before the inception of imperial sovereignty. The case law achieves implicitly what the Royal Proclamation of 1763 confirmed expressly. That is, the proclamation enacted that the "several Nations or Tribes of Indians ... should not be molested or disturbed" in relation to their unceded "hunting grounds," in virtue of such territory being "reserved" crown land. The case law confirmed this same essential point, indirectly. The case law confirmed that colonial governments had no inherent sovereign power to interfere with the natives' pre-existing power to govern themselves. Since no explicit power was granted by the imperial government to the colonial governments allowing them to change the imperial policy respecting aboriginal rights, the necessary consequence of this limitation upon colonial government power is the continuity of the natives' right not to be "molested or disturbed" by these colonial governments. This liberty, as it were, from colonial government interference left the aboriginal peoples with their pre-Columbian right of self-government intact. any of them, as their Hunting Grounds ... but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie. ..."

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Finally, and in point of historical fact, the imperial government never itself enacted legislation, nor expressly or explicitly delegated to any colonial government the power to enact legislation derogating from that governmental status quo.81 Historically the first leading case was Mohegan Indians v. Connecticut*2 decided by the Privy Council in 1773. This case arose in an unusual way, which explains why it has not been cited by North American courts as an authority in spite of its great cogency and relevance. Appeals from foreign dominions such as British North America lay to the king in his council, not to the king in his bench.83 Most important, such appeals included questions of colonial political jurisdiction and not just private law questions involving disputes in litigated matters. Appeals concerning colonial jurisdiction commonly arose in the Privy Council by way of appeals from decisions of royal commissions established to investigate political questions. In such instances the appeal typically would be to the Board of Trade which recommended a course of action that would then be incorporated into an imperial order in council. Such a ruling would not be reported in the conventional manner in which one expects to find precedents for legal purposes. The reports of the board and the corresponding orders in council are found instead in depositories in archives,84 and for this reason 81

Indeed, the imperial government in effect reiterated the prerogative legislation by recognizing and affirming it in statutes; see, chapter 3 under the heading "Positive Re-enactment: The Indian Territories Statutes." See also, St Catherine's Milling & Lumber Co. v. «., supra note 3, per Strong j., at 623, the statement that the proclamation "had the force of a statute and was in the strictest sense a legislative act, and which had never, so far as I can see, been repealed," and at 627.8, "so far as it regulates the rights of the Indians in their unsurrendered lands, [the proclamation] remained in force to the present day ... never having been repealed, nor in any way derogated from by any subsequent legislation, [it] remained in full force." 82 Supra note 76 "'Chalmers, Opinions of Eminent Lawyers i: i. ^The governors and councils of the North American colonies similarly exercised combined judicial-political functions. See Clark, A Summary of Colonial Law, 31-3. For example, appellate jurisdiction was vested in the governor and council of Quebec in 1786 by the royal instructions to Sir Guy Carleton, governor and commander in chief. See royal instructions, Public Archives Canada, MG 40 B?, 231-79, article 14. Occasionally this power in political bodies to act judicially was confirmed or granted by legislation. See, for example, An Ordinance for Establishing Courts of Civil Judicature in the Province of Quebec, 17 Geo. in, c. 1 (1777 Que.), s. 4; the Constitutional Act, 1791, 31 Geo. m, c. 31, s. 34; An Act to Establish a Superior Court of Civil and Criminal Jurisdiction, and to Regulate the Court of Appeal, 34 Geo. HI, c. 2 (1794); Union Act, 1840, 3 & 4 Viet., c. 35, s. 44. In fact, this function continued relative to Canada until 1849, when a Court of Error and Appeal was created in Canada to take the appellate jurisdiction formerly exercised by the governor and council. See An Act to Make Further Provision for the Administration of Justice, by the

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they are less accessible though no less important than normal law reports. One such imperial order in council embodied the decision in Mohegan Indians v. Connecticut, brought to light by the scholar J.H. Smith in his treatise Appeals to the Privy Council from the American Plantations.8* Smith had undertaken an analysis of those Privy Council records which, though not reported as judicial decisions in the customary manner, were issued in pursuance of the council's function as "a judicial body exercising appellate jurisdiction over the courts of the various American plantations during the seventeenth and eighteenth centuries."86 The term "courts" was understood here in its broadest sense, meaning any duly constituted tribunal charged by royal authority with power to investigate and declare rights, including governmental rights and powers. Commenting upon the general significance of such appeals when they concerned both Indian tribes and colonial governments, Smith observed: From the point of view of the development of public law the situation was peculiarly interesting in that none of the litigants possessed attributes of full sovereignty, and although the crown, in the case of colonies, continually referred to them as '^jurisdictions" in official communications, the expression was obviously not used in its common law sense, but had implications both factual and legal which ran beyond the accepted usage of English courts. The situation was further complicated by the circumstance that by the private law tests which governed English thinking certain units had a recognizable status as corporations or as feudatories, whereas others and notably royal colonies such as New York and Virginia, were impossible to fit into existing categories, being more than ancient demesne and peculiarly enfranchised, but without the usual muniments thereof. In the case of Indian tribes, there was likewise no available precedent. The medieval conception that the King was perpetually at war with infidels had sufficed to found the crown's right to the soil by conquest, but it was otherwise inadequate, since the realities of colonial administration soon disclosed it to be prudent to recognize some sort of Establishment of an Additional Superior Court of Common Law and also a Court of Error and Appeal, in Upper Canada, and for Other Purposes, 12 Viet., c. 63 (Prov. Can., 1849), ss. 37-9. See also generally, Banks, "The Evolution of the Ontario Courts 1788-1981." The governors and councils, like the imperial Privy Council itself, heard appeals from tribunals other than "courts", appeals from the quasi-judicial decisions of land boards on land matters relating to crown grants being an instance. See, for example, St Catherine's Milling & Lumber Co. v. fi. supra note 3, 651. 85 Supra note 52. ^Ibid., at v.

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status in the tribes and that, for the safeguard of the crown's own property rights, the original occupants had to be protected.87

The Mohegan Indian case of 1773 examined the effect of grants by the Indians of their lands to the colony in a series of transactions which had begun in 1640. Later the Indians argued that these transactions had been consummated so that the colony could hold the lands as a trustee for the Indians. The colony however had subsequendy granted the same lands to third parties, and argued that the original Indian conveyance was an outright surrender.88 Deriving no satisfaction from petitioning the colonial government,89 the Mohegans petitioned the queen in council for relief. The matter was referred to Attorney General Northey who gave his opinion that the queen might constitute a special court within the colony to do justice in the matter, reserving an appeal to the queen in council.90 A commission was accordingly issued under the great seal, on 19 July 1704, to the governor and ten others to examine the facts, hear the parties, and do justice and equity.91 This commission reserved a right of appeal for any aggrieved party to the queen in council.92 The royal commissioners on 24 August 1705 found for the Indians, and ordered that the lands in question be restored to them.93 The hearing in fact was conducted ex parte, because the colony refused to accept the commissioners' jurisdiction and made no representations beyond an opening challenge to that.94 Nevertheless, the colony filed an appeal with the queen in council upon the merits, as well as upon die jurisdictional point.95 On appeal die jurisdiction of the commission was upheld upon the ground that die Mohegans were a quasi-sovereign nation, as evidenced by frequent treaties made with them.96 The essence 87

Ibid., at 417. "Ibid., at 423-4. "Ibid., at 424. ^Ibid., at 425. 91 Ibid. ^Ibid. "'Ibid., at 426. 94 Ibid. 95 Ibid. at 427. ^Ibid., at 428. See also Barsh, "Behind Land Claims: Rationalizing Dispossession in Anglo-American Law," 18; Barsh comments that in the Mohegan case the majority considered that the Indians were "a foreign nation," although it is not necessary to go to that length to explain the narrow jurisdictional point in issue. The point was not that the Indian nations were "foreign," but rather that they were sovereign in the same way that the colonial governments were sovereign — that is, vested with a delimited jurisdiction independent of all other governments except as against the imperial government.

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of the colony's argument opposing the commission's jurisdiction had been that disputes between private parties and the colony were supposed to be dealt with in the regular courts constituted within the colony. The key to upholding the jurisdiction of the commission of enquiry was therefore the finding that the natives were not mere unincorporated associations made up of private parties. Because they were quasi-sovereign bodies politic themselves, it was not thought appropriate to insist that their disputes with the colony had to be resolved in the colony's courts any more than it would have been appropriate to resolve the matter in tribunals constituted by and for the natives. The jurisdiction of royal commissions of enquiry was precisely designed to meet the problem of resolving disputes between quasi-sovereign bodies politic, whether the dispute be between two colonies or between one colony and an aboriginal tribe. Although it upheld the commissioners'jurisdiction, on 10 June 1706 the Privy Council nevertheless ordered a review of the sentence imposed by the commission, and for that purpose appointed the governor of New York as one commissioner and ordered the Board of Trade to suggest the others.97 The final form of this commission of review was left in abeyance, and never passed the great seal.98 In 1737 a fresh commission of review was established by imperial order in council.99 The Indians were denied a hearing when this new commission sat, and it purported to overrule the 1705 judgment which had been in favour of the Indians.100 When this was brought to the attention of die Board of Trade this attempt to reverse the original judgment was set aside, on 31 July 1740, and a new commission of review was ordered to pass under the great seal.101 The new commission again confirmed the validity of the jurisdiction of the original 1705 commission,102 but nevertheless went on to hear further evidence and argument upon the merits of the land ownership dispute. Relative to the preliminary jurisdictional point, Commissioner Horsmanden took the view that the Indians were sovereign, and that accordingly the commission of enquiry was properly constituted with jurisdiction to investigate and report.103 This was the view that prevailed, but with two commissioners including President Golden dissenting. As to the merits of the land ownership dispute, the commission by "Supra 98 Ibid., "Ibid., ""Ibid., 101 Ibid. 102 Ibid., 103 Ibid.,

note 52. at 429. at 430-1. at 432. at 433. at 434.

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a majority led by President Golden (with two dissenting, including Horsmanden) purported to reverse the original 1705 decision in favour of the natives.104 An appeal was filed with the Privy Council in 1746 but lay dormant until 1756 because the Indians lacked funds to prosecute it.105 Eventually it was adjourned further, and final argument was heard only in June 1771.106 As might be expected with such a protracted litigation, the arguments were complex and varied, taking into consideration both governmental and proprietary aspects of aboriginal rights. Because the jurisdictional point going to the commission's authority was based upon a challenge to the political authority of the tribe to maintain an independent governmental identity opposed to that of the colony, the Indian governmental right was particularly addressed. Counsel for the colonial government of Connecticut reiterated the basic position taken by the colony from the beginning. The dissenting argument of President Golden which had approved that position on the jurisdictional point was thus adopted by counsel for Connecticut, and epitomized the colonial government's position. Counsel argued that the Mohegans were neither free, Independent, nor numerous ... That the Colony did not consider them as Independent further appears by their Laws relating to them ... which subject them to Punishment for Immoralities, and crimes, and enact various regulations with respect to them ... the Idea of the Mohegans being a separate or a sovereign state would, in America, where the State and condition of the Indians is known to everybody might expose Majesty and Sovereignty to Ridicule, might be of dangerous Consequences, and not to be suffered in a Court of Justice etc. When the English Treated with them it was not with Independent States (for they had no such thing as a Civil Polity, nor hardly any one Circumstance essential to the existence of a state) but as with savages, whom they were to quiet and manage as well as they could, sometimes by flattery, but oftener by force. Who would not Treat if he saw himself surrounded by a Company of Lyons Wolves or Beasts whom the Indians but too nearly resembled, ready to fall upon him and even call them Friends and allies too, if he thought it would for a Moment repress their Rage, and give him time to take measures for his security; but you would not therefore Immediately call them an independent State (though Independent enough God knows) because they hunt in the same Forest or Drank at the same Brook. The Gentlemen should have given some definition of a State or Commonwealth, it would then have appeared how far these Indians fall short of that Character. 104

Ibid., at 435. Ibid., at 436-7. 106 Ibid., at 438. 105

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Native Liberty, Crown Sovereignty

It is true indeed, that the English have taken Infinite Pains to Civilize and Christianize the Indians, and they sometimes flattered themselves with hopes of success, and that they should by degree make them Men and Christians, but all of their Endeavours (except in a very few Instances) they remain but little superior in point of Civilization, to the Beasts of the Field. This notion of their being free States is perfectly ridiculous and absurd. Without Polity, Laws etc. there can be no such thing as a State. It is also Inconsistent with their own Ideas that they were always under ... Guardianship.107

Having heard the arguments, the lord president reserved judgment. A year later the master of the rolls and the Speaker of the House were summoned to confer upon the case.108 On 19 December 1772, the committee of the Privy Council reported, and recommended the sustaining of the judgment of the 1743 commissioners, the judgment that had set aside the decision of 1705. The Indians thus lost the dispute over ownership of the land in question. Their status as quasisovereign bodies politic was affirmed, however, since the commission's jurisdiction, which was dependent upon that status, was affirmed. Smith commented, "the Mohegans, although juristically regarded as sovereign, did not enjoy de facto sovereignty."109 That conclusion is echoed right up to the present time: juristic but not de facto sovereignty. There is, and at all material times has been, this gap between the natives' right at law and their treatment in practice in the colonies.110 When the Mohegan case received final disposition in 1773, the crucial point relative to the aboriginal right of self-government was that the argument of counsel for Connecticut was not upheld on the preliminary jurisdictional point. That argument had been to the effect that the Indians were not juristically sovereign, that therefore the original 1705 commission was jurisdictionally a nullity, and finally that therefore no decision upon the merits of the land dispute was necessary. The 1705 commission'sjurisdiction had been upheld in 1743, by the reviewing commission, on the ground that "the Indians were a distinct people, that the property of the soil was in the Indians, and that royal charters did not ipso facto impropriate lands delimited therein to subjects I07

Ibid., at 434, endnote 109 (emphasis added). See also AC, Can. v. AG Ont., (1897) AC 199 (PC), 210-11, in which the Privy Council rejected the argument that the Indians were not "independent." This 1897 Privy Council decision is dealt with in detail later in this chapter and in chapter 4 under the heading "Responsible Government and Enclaves," in the text, between note numbers 50 and 60. 108 Supra note 52, at 442. 109 Ibid. ""See chapter 5, "Law Reform and the Negotiation Process."

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until fair and honest purchases were thereof made from the natives."111 That had been the opinion of Commissioner Horsmanden in 1743, from which President Golden on the commission dissented. The argument on the merits was whether the Indians had ceded the land. Upon the merits, the roles were reversed, with commissioners Horsmanden and Morris dissenting and President Golden and two other commissioners ruling against the natives. The Privy Council in effect accepted the view of Commissioner Horsmanden on the jurisdictional point, but that of President Golden on the merits of the land surrender issue. Thus in the end it was held that the natives werejuristically sovereign and capable of maintaining the action against the colonial government which was also juristically sovereign, even though they lost the case. The Mohegan case is a precedent binding upon Canadian courts. Unlike the American cases discussed in this chapter, that case was decided before the American revolution split British North America in two. The Mohegan case declared a principle of colonial constitutional law continuously binding upon loyal colonies. Although it might not therefore be a precedent for the purposes of American law, there does not seem to be any basis for excluding it when considering Canadian law. If Mohegan Indians v. Connecticut is a precedent, then the several nations or tribes of Indians were confirmed as independent bodies politic for legal purposes. Their powers can then be defined by a process of elimination. That is, when the power of colonial governments to interfere has been eliminated, it follows that the natives remain selfgoverning, as they were before the introduction of colonial governments. The process of elimination was achieved by two cases: Campbell v. HalllM decided in 1774, and Cameron v. Kyte113 decided in 1835. Campbell v. Hall involved an action for the recovery of money. It was brought against the tax collector of Grenada to compel the return of a duty of 4.5 per cent levied on sugar exported. That colony had been acquired from the French crown by right of conquest on 7 February 1763. The government of the newly acquired dominion of Grenada was the subject addressed (along with the government of the other three new colonies - Quebec, East Florida, and West Florida) in the Royal Proclamation of 1763. As in the case of the

'"Supra note 76, at 434. 112 Supra note 77. '"Supra note 78.

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former French colony of Canada,114 Grenada had been ceded by articles of capitulation. Article 5 of the capitulation relative to Grenada provided that local laws in force at the conquest would remain in force until His Majesty's pleasure to the contrary should be made known. This was followed by the Treaty of Paris, 10 February 1763. Next another royal proclamation, dated 26 March 1764, invited settlers from England to emigrate to Grenada where it was said that they would enjoy the liberty of self-government as contemplated by the Royal Proclamation of 1763. Letters patent in fact were issued authorizing the election of a local assembly. Subsequently, other letters patent were issued on 20 July 1764, imposing the 4.5 per cent duty. The governor arrived in Grenada later in that year, and the assembly met for the first time in 1765. When the case came to trial, it was upon the basis of an appeal reciting the above facts as given. Lord Mansfield delivered the court's opinion, first defining the issues as follows: "That the letters [imposing the 4.5 per cent duty] are void has been contended at the Bar, upon two points. 1st, that although they had been made before the proclamation [of 1763], the King by his prerogative could not have imposed them. 2dly, that although the King had sufficient authority before, he had divested himself of that authority by the proclamation [of 1763]."115 The argument in support of this first ground was that under the capitulation the king had promised that local laws would continue and that he was bound by this promise; therefore, even if the duty had been levied before the proclamation was promulgated, it was nevertheless an illegal duty because in the capitulation the king had relinquished the power to levy it. The second ground identified by Lord Mansfield argued that regardless of the capitulation the duty was enacted subsequent to the proclamation and that the proclamation, by granting an elected assembly with taxation powers, had implicitly deprived the king of the power to tax except upon the advice and with the consent of his assembly. The relevance of the first ground to the aboriginal right of selfgovernment derives from the parallel between the terms of the capitulation of Grenada and the capitulation of Canada. Article 40 of the capitulation of Canada stipulated: "The Savages or Indians, allies of His Most Christian Majesty will be maintained on the lands that they inhabit, if they wish to remain there, they will not be disturbed under any """Articles of Capitulation of Canada, Montreal, 8 September 1760. Shortt and Doughty, Documents relating to the Constitutional History of Canada 1759—1791, 33. 115 Supra note 77, at 895.

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pretext whatsoever for having taken up arms and serving His Most Christian Majesty."116 Lard Mansfield held that capitulations in general were binding upon the king in council, though Parliament itself could by statute depart from the arrangement in virtue of the absolute supremacy of the imperial Parliament. Since in the Indian context Parliament never withdrew the covenant made by article 40, therefore that article, which protected the aboriginal right of self-government, remained binding upon the king in council and therefore upon a colonial government constituted by the king in council. The importance of the second ground of attack upon the duty in Campbell v. Hall concerns the binding effect of the Royal Proclamation of 1763 upon colonial governments. The proclamation enacted that "the several Nations or Tribes of Indians... should not be molested or disturbed." If the argument were upheld - that the proclamation was binding upon the king in council - a fortiori it would be binding upon the colonial governments as bodies politic subordinate to the king in council. With these parallels in mind, we can consider Lord Mansfield'sjudgment more fully. He listed principles of law governing constitutional powers relative to all colonies, among which appeared: "[Thirdly,] articles of capitulation upon which the conquest is surrendered, and treaties of peace by which it is ceded, are sacred and inviolable, according to their true intent... [Fifthly,] laws of a conquered country continue until they are altered by the conqueror. The justice and antiquity of this maxim is uncontrovertible; and the absurd exception as to pagans, in Calvin's case, shows the universality of the maxim."117 This was sufficient to dispose of the case of Campbell v. Hall solely upon the ground of the capitulation, without the proclamation's even being addressed. The impugned 4.5 per cent duty was contrary to the intent of the capitulation; and the laws as they existed before the duty was purportedly enacted should therefore continue. The second ground for the invalidity of the duty was also upheld, in the alternative. By promulgating the proclamation and granting the colonists the right to an assembly with power to tax as an incident of self-government, Lord Mansfield held that the king had precluded himself from thereafter imposing taxes unilaterally pursuant to his prerogative power.118 The prerogative power upon that subject, in other words, was spent. "6Supra note 114 (emphasis in the original). '"Supra note 77, at 895-6. 118 Ibid., at 896-9.

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Transposing the principles established by Campbell \. Hall leads us to the following inferences. First, local laws and rights presumptively continue upon a change in the ultimate sovereign authority. Second, the old rights and jurisdictions cannot be taken away by a subsequent exercise of the royal prerogative, if they have previously been confirmed by a prerogative instrument bearing the great seal of Great Britain. In Canada the aboriginal right was conceded under both the capitulation and the proclamation. Either would have been sufficient to confirm the right. Only a subsequent act of the imperial Parliament therefore could have changed the rules once the aboriginal right had been so confirmed, and no such act of Parliament exists. Cameron \. Kyteng in 1835 then settled the constitutional point that colonial governments were not sovereign and accordingly had no inherent power to enact laws in derogation of aboriginal rights. It held that, to have existed, such a power must have been expressly and explicitly given to the colonial government in the great seal instruments constituting its powers. Cameron v. Kyle came before the Judicial Committee of the Privy Council from the Supreme Court of Civil Justice of the colony of Berbice. The facts involved a disputed claim by the vendue master of the colony to a 5 per cent commission on an estate sale. As grounds for entitlement, the official put forward evidence of a long-standing practice, confirmed by resolution of the directors of the chartered colony. Pursuant to this practice, the vendue master was allowed the commission on all property sold by public auction in the colony. The party opposite in interest relied upon a proclamation promulgated by the governor of the colony which purported to reduce the duty from 5 per cent to 1.5 per cent. Baron Parke, for the Privy Council, held: 'The amount of five per cent, is, therefore, in our opinion, proved to be a legal fee, unless it has been reduced by competent authority. And the only question is, whether the Governor's notification or proclamation was valid for that purpose?"120 The court held that the answer to this question depended on the extent of the governor's constitutional power. Since the power to reduce the fee had not expressly been conferred in the governor's commission, the question became whether some other basis could be identified. Two arguments were presented in that connection. One said that the governor's proclamation was valid since the imperial government acquiesced in it. The other said that the governor's power could be implied. As for the first argument, the court held that "such 119

Supra note 78. Ibid., at 681.

120

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an order cannot be supported on the ground that the acquiescence of the Crown is equal to its express authority ... We are, therefore, clearly of opinion that the notification cannot be rendered valid on this ground."121 Having disposed of the concept of validity through imperial acquiescence, the court turned to implied authority: Then the question is reduced to this single point, whether or not such an authority can be implied. It is not pretended by the appellant, that the Governor had by his commission or instructions any authority of this nature expressly communicated to him ... If a Governor had, by virtue of that appointment, the whole sovereignty of the Colony delegated to him as a Viceroy, and represented the King in the government of that Colony, there would be good reason to contend that an act of sovereignty done by him would be valid and obligatory upon the subject living within his government, provided the act would be valid if done by the Sovereign himself, though such act might not be in conformity with the instructions which the Governor had received for the regulation of his own conduct ... But if the Governor be an officer, merely with a limited authority from the Crown, his assumption of an act of sovereign power, out of the limits of the authority so given to him, would be purely void, and the Courts of the Colony over which he presided could not give it any legal effect. We think the office of Governor is of the latter description, for no authority or dictum has been cited before us to show that a Governor can be considered as having the delegation of the whole Royal power, in any colony, as between him and the subject, when it is not expressly given by his commission. And we are not aware that any commission to colonial Governors conveys such an extensive authority ... All that we decide is, that the simple Act of the Governor alone, unauthorized by his commission, and not proved to be expressly or explicitly authorized by any instructions, is not equivalent to such an Act done by the Crown itself.122 In general therefore colonial governments could enact laws only to the extent that the power relative to the topic was "expressly or explicitly" vested. The power could not be "implied"; nor could an act be validated on the basis of imperial "acquiescence." The following pattern emerges when Mohegan Indians v. Connectim

lbid., at 682. Ibid., at 682-4 (emphasis added). CompareCatterv. AC, far BC,[1973] SCR 313, 406, per Hall j.: "A Governor has no powers to legislate other than those given in the Commission." Contrast Calder, ibid., at 333, 344, where Judson j. assumed that the colonial government exercised "absolute sovereignty" and was "the sovereign authority."

122

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cut, Campbell v. Hall, and Cameron v. Kyteare read together. Aboriginal peoples retained the right of self-government at constitutional common law, after the inception of British sovereignty. The king in council could not derogate from that right once he had confirmed it under the terms of the capitulation or by royal proclamation. Colonial governments, being subordinate to the king in council, could not possibly have exercised greater powers than the king in council. Thus where the king in council has been bound to respect the aboriginal right, the colonial governments could not have assumed a greater power and legally derogated from that right. Furthermore, even if the king in council had the power to derogate from this right it cannot be assumed that such power was delegated to the colonial governments. The power of colonial governments to interfere with the natives' right of self-government would have to have been expressed in the great seal instruments constituting the colonial governments. The power could not be implied, or supplied ex post facto upon the basis of imperial acquiescence. No royal commission or proclamation constituting a colonial government in what is now Canada ever expressly or explicitly purported to vest in a colonial government the power to enact laws in derogation of the aboriginal right of self-government over unceded lands. Nor was legislation in derogation ever enacted by the imperial Parliament, except in relation to crimes and offences.123 The strictly independent and paramount character of aboriginal rights, as suggested by the triumvirate ofMohegan, Campbell, and Cameron, was then affirmed in a fourth case just before the turn of the nineteenth century. In 1897 the Privy Council decided the case of AG Can. v. AG Ont.n* or as it is sometimes called the Indian Annuities case. It construed the meaning of section 109 of the Constitution Act, 1867. That section says: All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia and New Brunswick at the Union, and all such Lands, Mines, Minerals or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to Any Interest other than that of the Province in the same [emphasis added]. Regarding the meaning of the word "Interest" in that section, the Privy Council held that the Indian title to unceded Indian territory was such an interest. And it said "On the other hand, 'an interest 123 124

See chapter 4 under the heading "The Crimes and Offences Exception." Supra note 107.

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other than that of the province in the same' appears to them [their Lordships] to denote some right or interest in a third party, independent of and capable of being vindicated in competition with the beneficial interest of the old province."125 That is perhaps the most crucial passage in aboriginal rights law in Canada. For by it the Privy Council confirmed first that the aboriginal peoples' claim to land was an "interest" for legal purposes, not a mere privilege unprotected by positive law. Second, the interest was called "independent" - it exists as of right even as against crown governments. Third, this independent interest is constitutionally protected. It was implicitly identified in section 109 of the Constitution Act, 1867, as being paramount to the crown's interest, both before and after confederation. That is the meaning of the phrase "capable of being vindicated in competition with the beneficial interest of the old province." It is important to be aware that in this passage Lord Watson, speaking for the Privy Council, was directing his remarks at land that was never surrendered Indian territory. He considered that such land, as a category for constitutional purposes, is in effect a series of adjoining "Indian reserves," occupied by the several nations or tribes. He said that before the Robinson-Huron Treaty of 1850 was made with the Indians "for the cession of certain tracts of land," the land "had until that time been occupied as Indian reserves."126 Thus unceded land for constitutional purposes was identified in both sections 91(24) and 109 of the Constitution Act, 1867. Section 91(24) allotted jurisdiction over "Lands reserved for Indians" to the federal government. Section 109 recognized that with respect to such lands the aboriginal peoples enjoyed an independent and constitutionally paramount interest. That interest predated confederation and was paramount at that time, since the point of section 109 was to continue the pre-confederation status quo. And that interest predated the treaty process. Indeed, the objective of the treaty process was precisely to acquire the Indian "interest," otherwise the crown had no right to deal with the land. As Lord Watson stated, "The effect of these treaties was, that, whilst the title to the lands ceded continued to be vested in the Crown, all beneficial interest in them, together with the right to dispose of them, and to appropriate their proceeds, passed to the Government of the Province."127 In a similar vein he added, "The beneficial interest in the territories ceded by the Indians under the 125

Ibid., at 210-11. Ibid., at 204. '"Ibid., at 205. 126

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Native Liberty, Crown Sovereignty

treaties of 1850 became vested, by virtue of s. 109, in the Province of Ontario."128 The immediate issue in the Indian Annuities case of 1897 was deciding whether the federal or the provincial government had to pay the Indian annuities created as crown debts in the course of making the Robinson-Huron Treaty of 1850. The court held that this was a federal government debt, even though the legal consequence of the treaty was that the province acquired the Indians' beneficial interest, permitting the province to open the land up for development purposes. The federal government was not comfortable with the idea that it had to make and pay for the treaties in Canada, if the provinces acquired the benefit of the treaties. But that, nonetheless, is what the Privy Council held to be the law. In the course of resolving this issue the Privy Council assessed the legal nature of the Indian interest in unceded land, for constitutional purposes. In arriving at that assessment the court created a constitutional common law precedent regarding the nature of aboriginal rights. The court did not suggest that the Constitution Act, 1867 created or constituted any new aboriginal rights. Section 109 referred only to interests in general. Section 91 (24) assigned a jurisdiction; it did not create or constitute substantive rights. The court on its own, and not in any apparent reliance upon any particular constitutive instrument, took it as given that the aboriginal peoples had rights in the pre-confederation era, that these continued in the post-confederation era, and that one aspect of such rights amounted to an "interest" within the meaning of section 109. Given this constitutional common law legacy deriving from the colonial era, the recent case of Wewayakum Indian Band v. Canada™9 may take on a dramatic relevance to the existing aboriginal right of self-government. In Wewayakum the Supreme Court of Canada in 1989, it will be recalled, held that "the law of aboriginal title is federal common law."130 This federal common law arguably subsumes or incorporates the constitutional common law identified above, and as well stands on its own as a distinct source of constitutional common law. Wewayakum involved one Indian band that was suing both another Indian band and also the federal government for declaratory and other relief to determine which band had the better right to possession of a specific Indian reserve. The action lay in trespass, a tort normally 128

Ibid., at 206. Supra note 61. See text accompanying note 61 for a discussion Of Wewayakum as a domestic common law precedent. 130 Ibid., at 262. 129

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Common Law of Self-Government

considered a matter falling within the provincial governments' legislative jurisdiction in relation to "Property and Civil Rights in the Province" conferred by section 92(13) of the Constitution Act, 1867. As such, one might have thought that the action as against the defendant Indian band would properly have been commenced in the Supreme Court of the province, rather than in the Federal Court of Canada where in fact it was commenced. One might also have thought that the plaintiff should have split its case, proceeding separately against the federal government in the Federal Court of Canada in view of the exclusive original jurisdiction of that particular court in suits against the federal government. But the plaintiff was not content with splitting its case in this fashion, and so sued both the other Indian band and the federal government in the same court.- the Federal Court of Canada. The defendant Indian band applied to strike out the plaintiff band's claim on the ground that the Federal Court lacked jurisdiction to deal with the trespass claim against the band.181 This application was appealed all the way to the Supreme Court of Canada and resulted in the decision under analysis. To setde this jurisdictional point, the court had first to identify an existing and applicable body of federal law as being essential to the disposition of the case. It was in satisfaction of that test that the court made its observation that "the law of aboriginal tide is federal common law." Other federal law was also held to be important to the eventual determination of the dispute. And on the basis that this body of federal law satisfied the jurisdictional test, the court dismissed the defendant band's application. The court's finding dial "the law of aboriginal title is federal common law" is crucial for present purposes, since "aboriginal tide" and the existing aboriginal right of self-government are two aspects of the same legal point. They derive from the same source, namely the "Indians' historic occupation and possession of their tribal lands" which "pre-dated colonization by the British and survived British claims of sovereignty."132 In his book Liability of the Crown,133 Professor Peter Hogg contrasts ls

'The short answer to the defendant band's application to strike, interestingly, was not raised by the plaintiff band. This is that the defendant band is a "federal board" within the meaning of section 2(h) and 18 of the Federal Court Act RSC 1985, c. F-7. That being so, the Federal Court has exclusive jurisdiction since the action was for "declaratory relief and an "injunction," species of relief assigned exclusively to the Federal Court jurisdiction. See Canatonquin v. Gabriel, [1980] 2 re 792 (CA); Rider v. Ear (1979), 103 DLR (3d) 168 (Alta. sc); Kingv. Gull Bay Indian Band (1983), 38 CPC 1 (Ont. DC); and Pratt v. Sproxtm (1977), 6 CPC 121 (Sask. QB). 132 Wewayakum Indian Band v. Canada, supra note 61. 133 Hogg, Liability of the Crown, 274-7.

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the concept of federal common law as understood respectively in the United States, Australia, and Canada. He suggests that while the concept is familiar in the United States, "Canadians and Australians have tended not to think in terms of a distinct federal common law."134 And he adds that, while in Canada there is no federal common law corresponding to the full range of federal legislation jurisdiction in occupying that field to the extent left vacant by federal statutes, nevertheless "enclaves" of federal common law exist. Citing the Wewaydkum case (under the name of Roberts v. Canada) he states, "Another area of federal common law is the law of aboriginal title."135 He concludes, "Although the court has never offered any criteria for the identification of the little enclaves of federal common law, it may be that the Court has in mind those federal common law doctrines that cannot be altered by the provincial Legislatures."136 Because of the entrenching effect of sections 35 and 52 of the Constitution Act, 1982, a "federal" constitutional common law arguably may have been created, which cannot be altered by the federal legislature any more than by the provincial legislatures, at least not in the absence of a constitutional amendment.'37 Whether or not the constitutional common law represented by Mohegan, Campbell, Cameron, and the Indian Annuities case is also "federal" in the Wewayakum sense, that previously established law is nonetheless "imperial." As such, it remains constitutionally binding upon the federal and provincial governments, regardless of which particular court has jurisdiction to apply it. The supreme courts of the provinces in some situations therefore have jurisdiction to apply the quatrain of Mohegan, Campbell, Cameron, and the Indian Annuities case whether as imperial law, federal law, or both. The Federal Court of Canada would also havejurisdiction to apply it specifically as federal constitutional common law incorporating138 imperial constitutional common law.139 134

Ibid., at 275. Ibid., at 277, note 59. I36 lbid., at 277. 137 For a general discussion of the difference between constitutional and domestic (municipal) law, see Reference Re The Seabed and Subsoil of the Continental Shelf

135

Offshore

Newfoundland

(1984), 5 DLR (4th) 385 (sec), which distinguished inter-

national law, imperial constitutional law, and municipal law; and which identified the resulting severable legislative and provincial governments. Reference Re Amendment of the Constitution of Canada (Nos. 1, 2, and 3) (1981), 125 DLR (3d) 1 (sec) distinguished constitutional law,which courts would enforce, from mere constitutional convention, which they would not. See also Croft v. Dunphy, [1933] AC 156 (PC), 163, 165, relative to the concept of the "fully sovereign state."

"sSkaarup Shipping Corp. v. Hawker Industries Ltd. (1977), 81 DLR (3d) 101 (FCTD), incorporating by reference statute and non-statute law of another jurisdiction considered.

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Common Law of Self-Government

Finally, there is an alternative way of regarding Wewayakum that admits its constitutional force and effect without necessarily relying upon the imperial constitutional cases Mohegan, Campbell, Cameron, and the Indian Annuities case. From diis perspective Wewayakum is treated as barkening to the concept of inherent aboriginal sovereignty and may therefore come to be regarded as the Canadian counterpart to the leading American case Worcester v. Georgia.140 It will be recalled that in Wewayakum "the law of aboriginal tide" as "federal common law" was held to be "derived from the Indians' historic occupation and possession of their tribal lands" and that "aboriginal title pre-dated colonization by the British and survived British claims of sovereignty."141 The court thus did not purport to identify the constitutive source for aboriginal rights as being locked into a time subsequent to the inception of British sovereignty. Instead, the court reached back to a time before that sovereignty, and looked upon the aboriginal state of affairs as being continuous, in spite of the intervention of British sovereignty. The court categorized the Indian interest arising on this basis as being "sui generis"142 (of one's own

139

The choice of courts issue will therefore depend upon the identity of the parties and other strategic considerations in particular cases. For example, an Indian band might sue a private party for trespass, relying upon its aboriginal title, in the Supreme Court of the province. But if it wanted to join the federal government in the action, the case would have to be heard in the Federal Court of Canada, since that court has exclusive jurisdiction over cases against that government. Federal Bill c-38 (first reading, September 9, 1989) would give the Supreme and Federal courts concurrent jurisdiction in such a case by amending section 17 of the Federal Court Act, use 1985, c. F-7. If, however, the plaintiff band were suing another Indian band rather than a private party, the Federal Court could still have exclusive original jurisdiction because of section 18 of the Federal Court Act. See supra note 131. See also Roy Little Chief v. AC Canada (1986), 5 WDCP 431 (FCTD); Joe v. Canada [1986] 2 SCR 145; Blackfoot Indian Band No. 146 (Members) v. Canada (1986), 5 FTR 23; Fort Alexander Indian Band v. Canada (1988), 19 FTR 315; Piche v. Cold Lake Transmissions Ltd., [1980] 2 FC 369; Finlay v. Canada [1986] 2 SCR 607. The complex question of court jurisdiction can be raised here, but not completely resolved, for reasons both of space and focus. Here the emphasis is upon defining the right, and the question of the forums for its vindictation is peripheral. HO Supra note 4. See also R. v. Farrell (1831), [1825-59] 1 Legge 5, 19 (SCNSW); and R. v. Symrmds (1847), [1840-1932] NZPCC 387, 388, 390. The first of these two colonial cases asserted the existence of "general unwritten laws of the Empire... emphatically called common law." The second recognized the American courts' position as being an illustration of "the principles of the common law as applied and adopted from the earliest times by the colonial laws." 141 Wewayakum v. Canada, supra note 61. 142 Ibid., at 257, 259.

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kind, peculiar, a thing apart, an isolated specimen) ,143 as most certainly

it is, since law normally is thought to spring from crown sovereignty rather than to precede and survive it. Even though Wewayakum was decided on its own, without reference to American cases, the parallel with Worcester is unmistakable. Chief Justice Marshall in that great case of first instance also reached back in time to the historical epoch when the natives were masters in their own house, and he regarded the constitutive basis for the natives' right as flowing from that perception rather than from subsequent constitutive sources identifiable in the written American constitution. More recently, in 1978, in Santa Clara Pueblo v. Martinez™4 the American Supreme Court reiterated this position and held: "Indian tribes have long been recognized as possessing the common law immunity from suit traditionally enjoyed by sovereign powers... Indian tribes are' distinct independent political communities, retaining their original natural rights' in matters of local self-government. Worcester v. Georgia, 6 Pet. 515, 559 (1832)."145 If Wewayakum is approached in this manner, then its significance arises from the fact that the "federal common law" is a separate basis for aboriginal rights, distinct from the imperial common law identified by Mohegan, Campbell, Cameron, and the Indian Annuities case. Although there is a parallel between this Canadian federal common law and the American federal common law, yet there is also an important difference. In America, the federal common law on this subject is not binding upon the federal government itself, since it is not confirmed in the American constitution. In that sense it began as, and remains still, merely domestic common law. By contrast, in Canada it is binding upon the federal government itself, since it is written into the constitution. The series of constitutional instruments reviewed in the subsequent chapters of this book, beginning with the Royal Proclamation of 1763 and culminating in section 35 of the Constitution Act, 1982, when read together, have this binding effect. Furthermore, since the federal common law, according to Wewayakum, recognizes the continuity of aboriginal rights from before the inception of British sovereignty, therefore the aboriginal right of selfgovernment was "existing" within the meaning of section 35 when the Constitution Act 1982 came into force on 17 April 1982. As a result, even if the right had not been confirmed in the Royal '"This definition of "sui generis" is from The Compact Edition of The Oxford English Dictionary (Glasgow: Oxford University Press, 1971). 144 436 u.s. 49. 145 Ibid., at 56, 58 (emphasis added).

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Proclamation of 1763 and the other written constitutional instruments preceding the Constitution Act, 1982, the 1982 act would still have constinationalized this federal common law retroactively from 17 April 1982. In America the federal common law upon this subject binds state governments, which are powerless to change it. The American federal government, though bound by diis law until it changes it,146 is nevertheless at liberty to change it by normal domestic federal legislation. No constitutional amendment is needed. The Canadian position compares and contrasts, in this respect. Provincial governments, like state governments, are bound by and cannot change the federal common law. But in contrast, in Canada the federal common law, whether seen as incorporating imperial common law or alternatively as being complementary, has constitutional force and effect. Not even the federal government can change it unilaterally. In Canada constitutional amendment is the necessary precondition to derogation from the existing aboriginal right of self-government. The irony or paradox of the ongoing constitutional negotiations in Canada, where the natives are seeking to have the aboriginal right of self-government expressly identified in the constitution, is that it is already there implicidy. The risk is that by specifying a new right, the revised constitution could tacitly repeal the old right: expressio unius est exdusio alterius. A new lamp is being exchanged for the old one. The genius of the old is that the power of its genie is inherent and full. It seems unlikely that any new right in substitution will be so expansive. H6

See, for example, State o/Idahov. Coffee, 56 P 2d 1185 (1976), at 1192-3, applied in AC Ont. v. Bear Island Foundation (1984), 49 OR (2d) 353 (HC), 438, (1989) 68 OR (2d) 394 (CA), 412-13. In the Coffee case the Supreme Court of Idaho held that the congressional intent to take Indian land extinguished Indian title at the point when the congressional intent was formally ratified by the American Senate, regardless of the absence of any valid Indian intent to cede the land in question. In other words, the federal government in the United States is not constitutionally bound to respect aboriginal rights. It exercises unrestricted sovereign powers. The trial judge and the Court of Appeal in the Bear Island case applied that American case to Canada, and held that the federal government in Canada similarly had sovereign power to extinguish aboriginal rights unilaterally by order in council. The trial judge on this basis concluded that in Canadian law "there was no legal right of internal administration or self-government by the local band." None of the constitutional common law cases applicable in Canada were applied. Nor was the Canadian constitutional legislation applied. The Court of Appeal said, "Counsel, whose research has been extensive, were unable to find a Canadian case dealing precisely with this subject." The Bear Island case is bad law. See the discussion in chapter 3 under the heading "Non-Repeal of the Prerogative Legislation" and in chapter 4 under the heading "Responsible Government and Enclaves."

C H A P T E R TWO

The Prerogative Legislation

The prerogative legislation is that body of law enacted by virtue of the king's pre-eminent power to make law independently of statute and the courts. As far as the existing aboriginal right of self-government is concerned, the relevant enactments pursuant to this power were, first, the individual royal commissions and instructions to the several governors, and second, certain royal proclamations applying to all colonial governments in an omnibus way. The imperial government was the author of these constitutional legislative instruments. Of the three sources for law- common law, statute law, and prerogative legislation - the last is both die most ancient and the least familiar. Since that particular form was the form by which the existing aboriginal right of self-government was first confirmed relative to what is now Canada, an examination of its principles is the first task of this chapter. This is followed by an analysis of the particular prerogative instruments that historically were promulgated confirming the aboriginal right of self-government. The essential perception is that the imperial prerogative instruments were Canada's first constitutions. When subsequent constitutional instruments such as the Constitution Act, 1867 or the Constitution Act 1982 subsume preexisting constitutional laws, they effectively incorporate the unrepealed general principles settled by this predecessor legislation. SUBORDINATION AND DELEGATION PRINCIPLES

The federal and provincial governments in Canada, like their predecessor colonial governments, are not sovereign governments exercising inherent powers. They are subordinate governments, exer-

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The Prerogative Legislation

cising delegated powers. The predecessor colonial governments were subordinate to the imperial government, and their legislative jurisdictions were constituted by that imperial government. The successor federal and provincial governments continue to be subordinate, even though the imperial government no longer has authority. The federal and provincial governments today are subordinate to the constitution, and can exercise only the powers delegated to them in the constitution. They are bound by a continuing constitutional restriction, requiring colonial governments not to molest or disturb native governments on unceded territory. "Constitution" here means the several constitutional common law precedents identified in the preceding chapter, plus the several constitutive legislative instruments enacted up to and including the Constitution Act, 1982 identified in this and the following chapters. Conjure up an image of the imperial government balancing the scales of power, the scales weighted on the one hand with the indigenous tribes and on the other with the colonial governments of the colonists. Although the balance could have been left a political question, to be determined on an ad hoc basis as future events might dictate, it was not. The balance was determined instead by established rules of constitutional law, knowable a priori. The crucial principles were subordination and delegation - the colonial governments were subordinate to the imperial government, and could validate only such legislative acts as were within the mandate of power expressly delegated by the imperial to the colonial governments. In particular, the imperial government withheld from colonial governments any mandate to negate the imperially constituted aboriginal right of self-government. Heading the colonial government structure1 within each colony was the governor, an imperial government appointee. Neither the governor nor the government constituted under his authority were sovereign. Their powers were delegated under the governor's commission of office, made by the king under the great seal of Great Britain. Particular rules of conduct were settled in the king's royal instructions, sup1

Sir William Blackstone observed that there were three sorts of colonies, namely provincial establishments, proprietary governments, and charter governments (Chitty, Prerogatives of the Crown, 29-31). In what is now Canada, the relevant forms were provincial establishments and the chartered, quasi-governmental Hudson's Bay Company. For practical purposes, however, it is sufficient to deal with provincial establishments, since that is enough to demonstrate the central point which is that colonial government was subordinate, with a restricted legislative jurisdiction as determined by instruments constituting overseas governments. The particular form of colonial government is neutral regarding that substantive point.

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plementing the governor's commission. Such instructions bore the signet and sign-manual of the king.2 These royal commissions and instructions, although reissued with each change of governor or upon a change of sovereign, were standard in form and content.3 Much of continental British North America, though considered British by the imperial government, was in the formative years left outside the civil administration structure just described. This unorganized residual area was thought to be primarily of military rather than of civil concern. Instead of being put under a governor's authority, it was put under direct control of the military establishment, as regulated by commissions and instructions to officers. These, so far as the natives were concerned, were consistent with the commissions and instructions to civil governors. The importance of thejurisdictional lines of authority in the colonial era may be gathered from the rules promulgated for establishing the rank and precedency within this colonial military-civil hierarchy. A declaration under the royal signet and sign-manual issued 17 December 1760 defined the relative powers of officials in the following descending order: 1 The Commander in Chief of our forces, by Commission under our Great Seal of Great Britain. 2 Captains-General and Governors in Chief of our Provinces and Colonies, when in their respective governments, as appointed by Commission under our Great Seal of Great Britain. 3 General Officers upon the Staff. 4 Captains-General and Governors in Chief of our Provinces and Colonies, when out of their respective governments. 5 Lieutenant-Governors and Presidents of Council, when Commanders in Chief of our Provinces and Colonies, in their respective governments. 6 Colonels. 7 Lieutenant-Governors and Presidents of Council, when Commanders in Chief of our Provinces and Colonies, out of their respective governments.4

Thus the top two officials in the colonial government structure, both constituted in office pursuant to the great seal of Great Britain, were the commander in chief and the governor in that order, others ranking 2

Chalmers, Opinions of Eminent Lawyers, I: 225. 'Stokes, Constitution of the British Colonies, 149-86, in which a typical commission is reproduced accompanied by a summary of typical instructions. 4 Ibid., at 187-9. The descending list continues on down through the lower orders of the civil and military ranks.

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The Prerogative Legislation

in descending order thereafter. At the apex, off the list and above it, sat the supreme authority - the imperial government represented by the secretaries of state in the Privy Council and above them, the king himself. The point is that when policy was set at the top-most level and enacted into prerogative legislation, every subordinate level thereafter was bound by the rules so established. It is wrong to assume that in those circumtances any colonial official had a power without first establishing the evidence delegating and vesting that power. It is also wrong to assume that an attitude, practice, or even enactment of a subordinate office has the force of law, without making sure that the attitude, practice, or enactment was not superseded by a contrary position expressed by a superior office in the hierarchy. It is important to insist upon the hierarchical approach that the declaration represents, since in later ages difficulties have been caused through a failure to appreciate the relative powers held by particular officials. There has, for example, been a tendency in modern writing to ascribe exaggerated importance to statements or enactments of governors. As illustration, one noted Canadian historian quoted a dispatch from Governor Frederick Seymour of British Columbia in 1864 to the colonial secretary at the Colonial Office in London as having said: "I may find myself compelled to follow in the footsteps of the Governor of Colorado ... and invite every white man to shoot each Indian he may meet."5 As a historical fact it was accurate to have observed that the governor expressed that sentiment. Unfortunately the impression was generated that the Indians were without legal rights, or that their rights were of no account at law. For legal purposes the reply of the colonial secretary, which went unremarked in the historian's article, was far more relevant. The reply put the governor gently but firmly in his place, and reminded him of the imperial government's official policy which was quite to the opposite effect. Cardwell, the colonial secretary, replied, "I do not understand the meaning of the paragraph in which you speak of inviting every white man to shoot every Indian he might meet. I shall rely on your continued adherence to the line of conduct hitherto pursued by you, which appears to have been perfectly consistent with humanity and good policy."6 This reminder of the need to conform to "good policy" harkened 5

Fisher, 'Joseph Trutch and Indian Land Policy," 158, citing "Seymour to Cardwell, 23 September 1864, governor's despatches, vol. rv." 6 Secretary of State E. Cardwell to Governor Seymour, 1 December 1864, letter no. 53, Entry Books of Correspondence 1861-67, Colonial Office Records (389/ 2 PRO London) Public Archives Canada microform reel 890, at 271.

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Native Liberty, Crown Sovereignty

back to the mandatory terms of the royal commission which had, under the great seal of Great Britain, constituted Governor Seymour in his office and stated. " xxvi. And it is Our further will and pleasure ... that you do especially take care to protect them [the Indians] in their Persons and in the Free Enjoyment of their Possessions, and that you do by all lawful means prevent and restrain all Violence and Injustice which may in any manner be practiced or attempted against them."7 The reminder was, therefore, that the governor could not do whatever he wanted. He was a subordinate official exercising delegated powers, not a sovereign authority. Courts have been known to lose sight of this essential point of jurisdiction. Mr Justice Judson, for example, in the 1973 case Colder v. AGfor BC,B said that the first governor of British Columbia in 1858 was constituted in office with "full executive powers," and that the pre-confederation colonial governments of that province enjoyed "absolute sovereignty" meaning "a sovereignty inconsistent with any conflicting [Indian] interest." Judson J. on this basis held that the governor and the colonial government over which the governor presided had unfettered discretionary powers, a proposition that belied the cornerstones of colonial constitutional law - subordination and delegation - an error facilitated by insufficient attention to the basic rules of rank and precedency.9 The only government with sovereignty in the colonial era was the imperial government. The basis in law for that government's original assumption of sovereignty was that discovery, conquest, or treaty gave the king in his imperial Privy Council the jurisdiction to legislate regarding overseas dominions pursuant to the royal prerogative.10 This was an a priori assumption. It relied for its legal effect upon no other

'Royal commission of Governor Seymour of British Columbia, 11 January 1864, Entry Books Series n no. 18, Commissions &c., Colonial Office Records (38118 PRO London) Public Archives Canada microform reel 890, 106, at 141-2. The references to "good policy" also harkened back to the omnibus provisions made by the Royal Proclamation of 1763, RSC 1970, app. n, no. 1 (herein referred to as "the proclamation"). See chapter 3 under the heading "Positive Re-enactment: The Indian Territories Statutes" in which it is shown that the imperial law established by the proclamation in the view of the imperial government applied to British Columbia. 8 [1973] SCR 313, 331-3. 9 The final section of chapter 1, under the heading "Constitutional Common Law" analyses the leading cases confirming the constitutional rules of subordination and delegation, rules that refute the suggestion by Judson j. that the colonial government was presumed to be sovereign. 10 Chitty, supra note 1.

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The Prerogative Legislation

authority than that it was made, and that die courts once it had been made would thereafter enforce legislative acts made pursuant to it.11 That subordination and delegation, not sovereignty, were the founding principles of colonial government was confirmed in an opinion rendered by "the attorney and solicitor general, Murray, and Lloyd, in 1755, on the question whether the governor and council have the power of making law."12 Addressed to the right honourable the lords commissioners for trade and plantations, this opinion recited that: Pursuant to your lordships' desire, signified to us by Mr Hill, in his letter of the 31st of March last, setting forth that a doubt having arisen, whether the governor and council of his majesty's province of Nova Scotia have a power of enacting laws, within the said province ... for the public peace, welfare, and good government of the said province, and the people and inhabitants thereof: we ... are humbly of opinion, that the governor and council alone are not authorized, by his majesty, to make laws. Til there can be an assembly, this majesty has ordered that government of the infant colony, to be pursuant to his commission, and instructions, and such further directions, as he should give, under his sign manual, or by order in council.13

The instruments identified by this 1755 opinion as being necessary and sufficient evidence of the delegation of a power to make laws upon a given subject were the governor's royal commission and instructions, or else subsequently issued further royal directions. Such subsequently issued directions could be in the form of private royal instructions under the royal sign manual, or alternatively could be in the form of a public order in council, meaning an instrument bearing the great seal of Great Britain.14 The matter of form was 11

Ibid., at 27. Chitty, although in context speaking more directly of the colony of Ireland, made the pointed general reference: "Sovereigns, who considered it as a dependent conquered dominion; and as such, possessed a legislative right over it," citing in authority [Campbell v. Hall, 98 ER 848 (KB), Lofft 665] Cowp. Rep. 210, post 29. See also, Salaman v. Secretary, [1906] 1 KB 613, 639; Sobhumnv. Miller, [1926] AC 518; Buranv. Denman, [1848] 2 Exch. 167'; Johnstone v. Pedlar, [1921] 2 AC 262, 278, 290; Nissan v. AC,, [1968] 1 QB 286 (CA), [1970] AC 179, 207; Halsbury's Laws of England, 4th ed., 28: 1413. 12 Chalmers, supra note 2, at i: 261. ls lbid., at 261—2. The lords commissioners for trade and plantations were an advisory body reporting to the Privy Council and charged with bureaucratic responsibility for overseas dominions, trade, Indian relations, and colonial government. 14 The next section of this chapter, under the heading "Royal Commissions, Instructions, and the Proclamation of 1763," gives a more detailed consideration of such instruments under the signet and sign manual and the leading order in council under the great seal - namely, the Royal Proclamation of 1763.

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Native Liberty, Crown Sovereignty

of central importance. A voluminous correspondence existed between the governors and the colonial office in London, and it was not open for governors to assume from mere dispatches expressing opinions or sentiments a jurisdiction to make laws upon a subject. Jurisdiction was delegated by specific instruments only. These had to bear either the signet and sign-manual of the king or else the great seal of Great Britain. That is, the power had to be vested pursuant to specific instruments promulgated by the imperial government. The king's hand was literally and directly, not just figuratively and vicariously, necessary. Once again the Colder case illustrates the pitfalls of insufficient attention to this matter of form. "Instructions" dated 31 July 1858 were sent by E.B. Lytton, secretary of state for the colonies, to Governor James Douglas of British Columbia. But these were not "royal instructions" in the legally relevant sense necessary for evidencing a delegation of jurisdiction from the imperial government to the colonial government. This was just a letter, in which the colonial secretary gave some advice to a subordinate officer to guide him in the administration of his office, a form quite incapable of constituting the powers of that office in any strictly legal sense. These "instructions" did not bear either the signet and sign-manual of the king or the great seal of Great Britain. Nevertheless, much was made of them by the judges in the Caldercase, in a way that completely misconceived their materiality for legal purposes. Judson j. quoted these so-called instructions of 31 July 1858, and he placed the emphasis thus: "I have to enjoin upon you to consider the best and most humane means of dealing with the Native Indians. The feelings of this country would be strongly opposed to the adoption of any arbitrary or oppressive measures towards them. At this distance, and with the imperfect means of knowledge which I possess, I am reluctant to offer, as yet, any suggestion as to the prevention of affrays between the Indians and the immigrants. This question is of so local a character that it must be solved by your knowledge and experience, and I will commit it to you, in the full persuasion that you will pay every regard to the interests of the Natives which enlightened humanity can suggest."15 Judson J. thus emphasized a clause that had the appearance of granting to the governor a discretionary power. In reality, since the instrument did not bear the signet and sign-manual or the great seal of Great Britain, it was incapable of constituting any power, discretionary or otherwise, in the governor. Nevertheless, this statement on the part of the secretary of state was what Judson J. advanced to substantiate 15

Supra note 8, at 329, (emphasis that of Judson j.).

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his crucial opinion that the colonial government was "sovereign" relative to the extinguishment of Indian rights. Mr Justice Hall, also in the Colder case, disagreed with Judson j. regarding the capacity of the governor to extinguish Indian rights. He quoted the very same letter, but by emphasizing different sentences took the same passage as evidence of an absence of power in the colonial government: "7 have to enjoin upon you to consider the best and most humane means of dealing with the Native Indians. The feelings of this country would be strongly opposed to the adoption of any arbitrary or oppressive measures towards them. At this distance, and with the imperfect means of knowledge which I possess, I am reluctant to offer, as yet, any suggestion as to the prevention of affrays between the Indians and the immigrants. This question is of so local a character that it must be solved by your knowledge and experience, and I commit it to you, in the fuU persuasion that you will pay every regard to the interests of the Natives which an enlightened humanity can suggest."16 As a result of not paying due attention to the form of the instrument, an extremely important point (the extinguishment of aboriginal rights in British Columbia) was therefore treated largely as a matter of interpretation of a mere letter, a letter better to have been set aside in order to concentrate upon genuinely relevant instruments. In fact, the genuinely relevant instruments were not addressed at all in the case - namely, the enactments of the Parliament of the United Kingdom which made it clear that what is now British Columbia was regarded by the imperial government as part of the Indian Territory reserved for the Indians.17 The 1755 opinion of the solicitor general and attorney general quoted above is not, it should be added, just another opinion. Its coauthor the attorney general, Murray, was appointed chiefjustice the year after the opinion was given, at which time he took the title under which he is now widely considered the most illustrious jurist of eighteenth century England, Lord Mansfield.18 In his capacity as chiefjustice, 16

Ibid., at 409,413-14 (emphasis that of Hall j.). Hallj. unlike Judson j. was nevertheless alive to the crucial subordination and delegation principle. He observed (ibid., at 406), "Douglas' powers were clearly set out in his commission. A Governor had no powers to legislate other than those given in the commission." The said commission was silent regarding Indians. "The second section of chapter 3, under the heading "Positive Re-enactment: The Indian Territories Statutes," portrays the imperial legislation, which, inter alia, classified preconfederation British Columbia as "Indian territory" subject to the imperial government's law that the Indians not be molested or disturbed. This legislation should have been determinative of, but was not considered in, the Colder case. 18 Chalmers, supra note 2, at i: xxxviii-xlii.

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he later pronouncedjudgment in the leading constitutional case Campbell v. Hall in 1774. That case confirmed the crucial importance of the form of instruments and held that the Royal Proclamation of 1763 was binding even upon the king, since it was an order in council issued under the great seal of Great Britain.19 Most important, Campbell v. Hall confirmed the subordinate and delegated nature of colonial government jurisdiction, as well as the need to look carefully at the form of instruments when assessing their weight. It thus reiterated the position occupied by the chief justice when he had been attorney general in 1755. The weighty nature of the 1755 opinion was not, however, entirely due to the personal identity of its authors. It also commands respect due to the identity of its recipient. The Board of Trade (or "lords commissioners of trade and plantations") was "the constitutional channel through which the colonial acts must come ... for the king's ultimate decision."20 This board during the term of its existence formulated policy upon which the king and Parliament enacted law relative to the colonies. The policy it formulated was based partly upon opinions requested of the attorney general and solicitor general, such as the one delivered in 1755. When the king endorsed recommendations of this board, he tacitly endorsed the legal premises upon which the recommendations were based.21 This discussion of the major players and the limitations upon their powers is not complete without a word for the superintendency of the Indian Affairs department. The superintendent was ex officio a member of the colonial council in his political capacity, and beyond that was merely an administrative officer bound to carry out the terms of his office as settled by his particular commission and instructions. There are in every Colony twelve Ordinary Members of the Council, who are appointed either by being named in the Governor's Instructions, or else by Mandamus. In the Colonies on the Continent, before the Civil War [1776-83], there were two extraordinary Members of the Council, viz. his Majesty's Superintendent of Indian Affairs, and the Surveyor-General of the Customs: but notwithstanding the Governor in Chief and Lieutenant-Governor, should be both dead, or absent from the Province, yet neither of those two extraor-

19

Campbell v. Hall, supra note 11, Lofft at 739. This case is considered at greater length in the last section of chapter 1. Chalmers, supra note 2, at i: xxi. 21 Ibid., at vii-xx. Chalmers provides a succinct history of the Board of Trade which is of particular value whenever it is important to weigh carefully a communication to or from the king during the period 1660-1782.

20

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dinary Members of the Council could administer government, though next in seniority, but the command devolved on the Ordinary Member of the Council next in seniority to such Superintendent or Surveyor-General.22

The superintendent was in the council as an adviser, important enough to rank as the first named extraordinary member, but not so important as to be entrusted with general civil power in the absence of the governor or his deputy. The governor had no law-making or policyformulating mandate of his own, and so, a fortiori, the superintendent had none. The point is not that colonial governments could not have been given sovereign power, but rather that, in what is now Canada, they werenot given such power. Being itself sovereign, the imperial government, had it wished to do so, was perfectly competent to have delegated a vice-regal jurisdiction. Another attorney general remarked upon this theoretical option: Sir Robert Raymond, attorney-general and later chief justice,23 together with Sir Philip York, chief justice24 after Lord Raymond, suggested on 14 December 1722, in an official opinion delivered to the Board of Trade regarding the king's power to establish a civil jurisdiction at Gibraltar, that sometimes the crown has thought fit, by particular express provisions under the great seal, to create and form the several parts of the constitution of a new government, and at other times has only granted general powers to the governor to frame such a constitution as he should think fit, with the advice of a council, consisting of a certain number of inhabitants, who might be supposed to be most capable of judging what the condition of the country required, and this subject to the approbation of disallowance of the crown; but which of these two methods is fittest to be followed in this case, depends upon the particular circumstances of the place.25

The "particular circumstances" of British North America (which included numerous and warlike tribes) persuaded the imperial government of the impolicy of investing colonial governments with powers to interfere with the Indians' autonomy. Thus the several royal commissions, instructions and further directions, and the Royal Proclamation of 1763,26 as well as a series of imperial statutes,27 all 22

Stokes, supra note 3, at 237. Chalmers, supra note 2, at i: xxxi. Ibid., at i: xxxv. 25 Ibid., at i: 169, 180. 26 See the next section of this chapter "Royal Commissions, Instructions and the Proclamation of 1763." 25 24

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construed together, recognized and affirmed that, to adopt the proclamation's turn of phrase, "the several Nations or Tribes of Indians ... should not be molested or disturbed."28 That the Indians might have taken umbrage had jurisdiction over their affairs been granted by the imperial government to the colonial governments is manifest. As one well-known 1837 report stated: The protection of the Aborigines should be considered as a special duty peculiarly belonging and appropriate to the Executive Government, as administered either in this county or by the governors of the respective Colonies. This is not a trust which could conveniently be confided to the local Legislatures. In proportion as those bodies are qualified for the right discharge of their proper functions, they will be unfit for the performance of this office, for the local Legislature, if properly constituted, should partake largely in the interests, and represent the feelings of the settled opinions of the great mass of the people for whom they act. But the settlers in almost every Colony, having either, disputes to adjust with the native Tribes, or claims to urge against them, the Representatives body is virtually a party, and, ought not to be the judge in such controversies; or, if Members of the Colonial Legislature are not chosen by the people, but selected by the Government, there is still a similar objection to their interference with regard to the Aborigines. Possessing an invidious elevation, in which they are supported by no other title than that of the preference of the Crown, they will endeavour to abate the ill-will which follows upon such superiority, by ministering to all popular prejudices which do not directly invade the power and the rights of the government they serve. Whatever may be the Legislative system of any Colony, we therefore advise, that, as far as possible, the Aborigines be withdrawn from its control.29 The essence of the recommendation was that the imperial government should maintain an even hand between the Indians and the colonial governments. This the imperial government has done all along, by means of

27

See the second section of chapter 3, "Positive Re-enactment: The Indian Territories Statutes." 28 Royal Proclamation of 1763, RSC 1970, app. n, no. 1, at 127. 29 Extract from the "Report of the Select Committee of the House of Commons (U.K.) on the Aborigines of the British Settlements, 26th June 1837," in Canada, Report on the Affairs of the Indians in Canada, appendix T, at paragraph 1 under the internal heading "General Recommendations". For a clear illustration of the anti-Indian and pro-colonist bias of colonial governments, as prophesied in this report, see Fisher, supra note 5.

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constitutional laws promulgated to that end, which have circumscribed the powers of colonial governments and their federal and provincial successors.30 The principles of subordination and delegation were confirmed by the imperial Parliament when in 1696 and 1766 it enacted respectively An Act for Preventing Frauds, and Regulating Abuses in the Plantation Trade,31 and An Act for the Better Securing the Dependency of His Majesty's Dominions in "America" upon die Crown and Parliament of "Great Britain."32 The 1696 act provided that "all Laws, By laws, Usages or Customs, at this Time, or which hereafter shall be in Practice, or endeavoured or pretended to be in Force or Practice, in any of the said Plantations, which are in any wise repugnant ... to [this or] any other Law hereafter to be made in this Kingdom, so far as such Law shall relate to and mention the said Plantations, are illegal, null and void, to all Intents and Purposes whatsoever."33 The 1766 act provided that "[t]he said Colonies and Plantations in America have been, are, and of Right ought to be, subordinate unto, and dependent upon, die Imperial Crown and Parliament of Great Britain; ... And be it further declared and enacted ... That all Resolutions, Votes, Orders, and Proceedings in any of the said Colonies or Plantations, whereby the Power and Authority of the Parliament of Great Britain, to make Laws and Statutes as aforesaid, is denied or drawn into question, are, and are hereby declared to be, utterly null and void to all intents and Purposes whatsoever [emphasis in the 1766 act]."34 Clearly, the imperial government was protective of its paramountcy. The colonial constitutional law established by that government was perfectly unambiguous. The colonial governments constituted by the imperial government were subordinate governments, exercising delegated powers. They were never made sovereign governments, exercising inherent powers. That, in a real sense, is the basis for the existing aboriginal right of self-government. Throughout Canadian history the colonial governments have constitutionally been bound to respect aboriginal rights, whedier they liked them or not, because they were never invested with sufficient legal power to abrogate such rights. M

Supra note 28. And see, the second section of chapter 4, under the heading "Responsible Government and Enclaves," which describes the growth of responsible colonial government as being without prejudice to the corresponding aboriginal right of self-government. 31 7 & 8 Wm. m, c. 22 (1696). 52 6 Geo. in, c. 12 (1766). 33 Supra note 31, section 12. 34 Supra note 32, sections 1 and 2.

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ROYAL C O M M I S S I O N S , INSTRUCTIONS, AND THE P R O C L A M A T I O N O F 1763

The first colonial constitutions took form as prerogative legislation. That is, colonial governments were constituted in virtue of "royal commissions" - orders in council bearing the great seal of Great Britain and appointing the governors of the colonies. The mandatory terms and conditions of constitutional government were set out therein. Those mandatory constitutive instructions were later commonly supplemented by merely directory regulations contained in separate "royal instructions" bearing the signet and sign-manual of the king. One set of such merely directory royal instructions invariably accompanied the constitutionally binding royal commissions. Further merely directory instructions, also under the signet and sign-manual, were sometimes issued subsequently and were then referred to as "directions" or as "additional instructions." Rarely, a constitutive instruction (that is, a mandatory term and condition of constitutional government) was declared to be of general application. Instead of inserting a provision into the individual royal commissions, for each of the several colonies, the crown had the option of promulgating a single omnibus royal proclamation, at once applicable to all colonial governors and their governments. Like the royal commissions, such a proclamation bore the great seal of Great Britain, being no less an order in council. The advantage of this royal proclamation device was that by a single stroke, constitutionally binding terms and conditions could be imposed that otherwise would have required the cancellation and reissuance of the several individual commissions outstanding for each of the colonies. One might have thought that a serial set of additional instructions bearing only the signet and sign-manual would have served the same purpose as a royal proclamation. But such additional instructions, being merely under the signet and sign-manual, were not, in law, considered definitive of the constitutional capacity of colonial governments to enact laws.35 Only royal commissions and royal proclamations, as orders in council bearing the great seal of Great Britain, were appropriate to that constitutional purpose. Local laws that were within the constitutional capacity of colonial governments to enact took three domestic forms. These were (1) a governor's proclamation, (2) an order of the governor in council, 35

Swinfen, "The Legal Status of Royal Instructions to Colonial Governors," 39.

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or (3) an act of the colonial assembly. Such local enactments were subordinate legislation pursuant to the explicit delegation of power by the imperial government duly made by royal commission or else by royal proclamation. Therefore, the question whether a given colonial law was intra vires or ultra vires (that is, within or outside of its scope) turned primarily upon the jurisdiction specifically conferred upon, or withheld from, the author of the particular law by the instruments bearing the great seal of Great Britain. When construing domestic enactments of colonial governments, it is also important to distinguish the two doctrines of constitutional capacity and of repugnancy. The issue of constitutional capacity can exist even when a colonial government's enactment stands alone. The doctrine of repugnancy however can arise only when a colonial law and an imperial law collide. The doctrine of repugnancy is a conflictsof-law rule, which asserts the paramountcy of imperial law by holding the colonial law to be inoperative to the extent of the conflict. In contrast, if a colonial law were made by a colonial government not invested with the constitutional capacity to enact upon that subject, then the law would be a nullity, not necessarily because of any conflict with an imperial law on the same topic, but rather because the colonial enactment simply never acquired the force of law, since its author had no jurisdiction. The perception that constitutional capacity and repugnancy are distinguishable bases for questioning the validity of enactments of colonial governments appears to have been outside the focus of Judson J. in the leading 1973 decision Calder v. AG for BC. 36 He said, "in the present case, the sovereign authority elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishiga tribe might have had, when by legislation, it opened up such lands for settlement, ..."37 It was here that the difference between repugnancy and constitutional capacity became crucial. The basis for Judson J.'s decision was that, since in his view no express imperial law prohibited the colonial government from acting in a w

Supra note 8. Ibid., at 344 (emphasis added). But see Simon v. n (1986), 24 DLR (4th) 390 (sec). In the Simon case the Supreme Court of Canada ruled that hunting rights under a treaty could not be implicitly extinguished by general words in a statute. The implications of this for the Calder case were noted by Sanders, "Aboriginal Rights in Canada: An Overview," at 187. Sanders suggested that a trend may have started whereby the Supreme court of Canada may be indicating a receptiveness to reassessing past positions taken by the court relative to extinguishing Indian rights by state actions that are less than "clear." See «. v. Sparrow, [1987] 1 CNLR 145 (BCCA), 160-5, in which the court did indeed appear willing to reconsider Calder.

37

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manner inconsistent with Indian rights, therefore the colonial government could do whatever it wanted. His conclusion that no imperial legislation stood in the way was itself based upon a finding that the Royal Proclamation of 1763 did not geographically apply to British Columbia.38 Judson j. in effect held that since the proclamation did not apply to the lands in question, the doctrine of repugnancy was necessarily also inapplicable. Once that was established, the court erroneously assumed that the colonial government was sovereign. In this way the doctrine of repugnancy effectively pre-empted the more fundamental and preliminary issue of constitutional capacity. The crucial enquiry should have been to identify the royal commissions investing the colonial government with positive jurisdiction unilaterally to extinguish Indian rights. Instead, the question became whether the proclamation applied, the erroneous assumption being that if it did not then the colonial government was effectively sovereign.39 The Colonial Laws Validity Act40 of 1865 addressed the doctrine of repugnancy with respect to both imperial instructions and statutes, although it is most commonly discussed only in the latter context.41 Regarding repugnancy with imperial statutes, the act provided: "3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid." It is unlikely the Royal Proclamation of 1763 could fit within the category of paramount imperial law contemplated by that section, since the proclamation was prerogative legislation rather than either an "Act of Parliament" or subordinate 38

Colder, supra note 8, at 323-5. Compare Slattery, The Land Rights of Indigenous Canadian Peoples, 315-19. Dr Slattery stated that "colonial legislatures had the power, in principle, and subject to any particular restrictions, to modify or abrogate Indian land rights recognized by the Proclamation" (at 319). Slattery arrived at this conclusion after having considered the doctrine of repugnancy, but, like the court in Colder, having not considered the more fundamental issue of constitutional capacity in the light of the relevant royal commissions and instructions. Paradoxically, in another part of his thesis (at 304) Slattery also stated, "Acts done in excess of such [as specified in the governor's commission and instructions] authority, or violating the Crown's direct prohibition, are invalid." Slattery did not clarify how it was that a local colonial legislature constituted under the governor's authority could supposedly exercise powers withheld from the instruments constituting the terms of colonial government. Regarding his conclusion that the local legislature could override the proclamation, Slattery suggested that "there is little judicial authority on the matter" (at 315) and that his conclusion was offered "tentatively" (at 319). 40 An Act to Remove Doubts as to the Validity of Colonial Laws, 28 & 29 Viet., c. 63 (1865). 41 For example, Slattery, supra note 39, at 317.

S9

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legislation under such an act. Therefore even had Judson j. viewed the proclamation as applicable to British Columbia, that order in council would not necessarily have prevented that colonial government from extinguishing aboriginal rights solely on the basis of section 3.42 The doctrine of repugnancy pursuant to section 3 of the Colonial Laws Validity Act therefore becomes determinative only by identifying an act of Parliament or subordinate legislation under such an act that says the same thing as the proclamation. Such acts and subordinate legislation are identified in detail in chapter 3 of this study under the heading "Positive Re-enactment: The Indian Territories Statutes." The point developed there is that by classifying British Columbia as "Indian territory" for legal purposes the imperial Parliament effectively applied the proclamation's concept to that province. Those acts and that subordinate legislation were not addressed by Judson j. in the Colder case. The immediate concern, however, is to enlarge upon the issue of repugnancy due specifically to conflict of colonial government enactments with imperial government prerogative legislation, as opposed to conflict with imperial statutes. Regarding this type of repugnancy, the same Colonial Laws Validity Act provided: 4. No colonial law passed with the concurrence of or assented to by the governor of any colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with reference to such law or the subject thereof which may have been given to such governor by or on behalf of Her Majesty, by any instrument other than the letters paten t or instrument authorizing such governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent or last-mentioned instrument.

This crucial section in effect said that laws made by the colonial government would be deemed invalid if contrary to constitutive instructions in the governor's royal commission under the great seal of Great Britain; but they would not be deemed invalid merely for breaching the governor's royal instructions under the signet and signmanual. This result was achieved, first, by the fact that the section applied to all "colonial law passed with the concurrence of or assented to by the governor." Thus the section applied to enactments of the colonial legislature. One could not therefore argue that the governor's commission 42

Ibid.

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bound him in the issuance of governor's proclamations or orders in council, but did not bind enactments of the colonial legislature. All three forms of colonial government legislation were caught by section 4 of the Colonial Laws Validity Act. Second, the section indicated that no colonial law would be deemed void or inoperative by reason "only" of breaching "instructions." But, it added, invalidity would result if the particular instructions were contained in the very "letters patent or instrument authorizing such governor to concur in passing or to assent to legislation" - that is, in the royal commission bearing the great seal of Great Britain constituting the governor in office. Finally, section 4 of the Colonial Laws Validity Act made it clear that there was to be no incorporation by reference of instructions (merely under the signet and sign-manual) into commissions (bearing the great seal). It said, "even though such instructions may be referred to in such letters patent" they were not considered to be part of such letters patent for the purpose of assessing their binding effect The difference between commissions and instructions was that in virtue of the great seal of Great Britain, commissions were public legislation, whereas instructions bearing only the signet and sign-manual of the king were private. A breach of the former entailed a conceptual breach of public law, whereas a breach of the latter meant the governor was in effect reneging on a private duty. A breach of the former invalidated the colonial law, whereas a breach of the latter meant only that the governor was personally subject to reprimand or recall. Again, commissions were mandatory, whereas instructions were only directory relative to the constitutional repugnancy issue. I submit that the Royal Proclamation of 1763 was coveredT by section 4, and thereby was confirmed in its binding effect upon colonial governments in virtue of the imperial Parliament's Colonial Laws Validity Act. The proclamation was an order in council bearing the great seal of Great Britain,43 promulgated by means of what section 4 described as "letters patent ... authorizing such governor to concur in passing or to assent to laws for the peace, order, and good government of such colony."44 Indeed, the proclamation had said: We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by 43

Campbell v. Hall, (1774) Lofft 655, 739, 98 ER 848. Slattery, supra note 39, at 284-7, discusses the issue of the proclamation's formal validity, including the impression of the great seal. "Supra note 6.

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which the said Governments are constituted, given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies, within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government; And We have also given Power to the said Governors, with the consent of our -Said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and restrictions as used in other Colonies.45

The proclamation thus confirmed the uniformity of colonial government powers throughout British North America. The new colonies constituted under it were placed on the same footing as to powers as the "other Colonies." All - new colonies and old alike - were then made subject to the Indian part of the proclamation, which said "that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds."46 This restriction on the power of colonial governments, not to molest or disturb the Indians when applying the colonists' laws relative to the peace, order, and good government of the colony, was universal. It was referable "upon any lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them."47 The essential point of the proclamation was that it made mandatory, under the great seal of Great Britain, an imperial policy that formerly 45

RoyaI Proclamation of 1763, RSC 1970, app. n, no. 1, at 125 (emphasis added). Ibid., at 127. 47 Ibid. In spite of this clear expression of legislative intent, the issue of the territorial application of the proclamation has since become vexed. See for example^ Colder v. AC for EC, supra note 8, at 322-3 and 325 per Judson j., contra Hall j. at 394-5; Burke v. Cormier (1890), 30 NBR 142, 148 per Allen cj. indicating that the proclamation did not apply to New Brunswick but only Ontario and Quebec (old Canada); R. v. Syliboy (1928), 50 ccc 389, 392-3, contra K. v. Isaac (1975), 13 NSR (2d) 460 (CA), 468, 497, regarding Nova Scotia; n v. Kogogolak (1959), 28 WWR 376 (Terr. Ct), 378, n v. Koonungnak (1963), 45 WWR 282 (Terr. Ct), 302 and R. v. Sikyea (1964), 46 WWR 65 (NWTCA), 66, affd [1964] SCR 642, 646, contra Hamlet of Baker Lake v. Min. of Ind. Aff. (1979), 107 DLR (3d) 513 (TC) 46

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had been expressed in merely directory instructions bearing the signet and sign-manual of the king.48 The alternative way pursuant to the prerogative power to have made the message a binding term of the constitution would have been to reissue all the individual governors' commissions in British North America. But that would have lacked the element of publicity, which was a distinct objective in view of the desire to reassure the Indians of the imperial government's good intentions.49 Before the proclamation was promulgated, the restriction on colonial government powers had generally been contained in the relatively confidential and merely directory instructions rather than in the binding commissions. In terms of the repugnancy issue, the promulgation of the proclamation therefore meant that enactments of colonial governments that "molested or disturbed" the Indians henceforth were legally ultra vires, as opposed to merely being contrary to policy or convention. One must, nevertheless, continue to examine carefully the terms of the relevant commissions and instructions whenever an enactment of a colonial government is being assessed in terms either of the regarding the Northwest Territories; St Catherine's Milling & Lumber Co. v. a (1887), 13 SCR 313, contra «. v. Bonhomme (1917), 38 DLR 647 (Ex. cc) regarding old Canada inside the colonial government boundary as defined before the boundary was extended. The very best statement on the subject of territorial application was delivered by Baldwin j. of the American Supreme Court, who said in Mitchel v. as., 9 Peters 711, 756 (1835): "This proclamation was also the law of all the North American colonies in relation to crown lands." 48 The proclamation had been preceded in 1670 by a Royal Instruction which established the imperial government policy of centralizing control of native relations in itself, and accordingly of instructing governors to respect and protect aboriginal rights. Unlike the proclamation, the 1670 Instruction was a mere guideline, the breach of which would not necessarily invalidate a law made by a colonial government. See Canada, Report on the Affairs of the Indians in Canada, appendix EEE. Section 1 of this is entitled "History of the Relations between the Government and the Indians." It says, inter alia, "In 1670, during the reign of Charles n a code of instructions was issued for the guidance of the Governors of the Colonies, from which the following are extracts 'Forasmuch as ... peace is not to be expected without the due observance and preservation of justice to them, you are in Our name to command all the Governors that they are at no time to give any just provocation to any of the said Indians that are at peace with us.'" 49 That the publicity aspect of the proclamation was the very point of employing that particular form, instead of burying the provisions in the less notorious commission format, was underscored by Johnson j. of the American Supreme Court in Harcwrt v. Gaillard, 12 Wheat. 523, 527 (1827): "the power of the crown was at that time admitted to be very absolute over the limits of the royal provinces; but there is no reason to believe that it had ever been exercised by any means less solemn and notorious than a public proclamation." See also, Johnson v. Mclntosh, 8 Wheat. 543, 597 (1823).

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constitutional capacity of its author or of the repugnancy of its enactments. Occasionally, though not usually, aboriginal rights were expressly protected in the governor's commission, not just in his supplemental instructions. We have already noted one exceptional illustration of this, as when the royal commission of 1864 to Governor Seymour of British Columbia had provided: "xxvi. And it is Our further will and pleasure ... that you do especially take care to protect them [the Indians] in their Persons and in the free Enjoyment of the Possessions, and that you do by all lawful means prevent and restrain all Violence and Injustice which may in any manner be practiced or attempted against them."50 Since, after promulgation of the Royal Proclamation of 1763, it was unnecessary to repeat in the several royal commissions the caveat against molesting or disturbing the Indian nations or tribes to give the caveat binding constitutional effect, the general practice was to include "reminders" in the supplemental instructions. The first royal commission and set of accompanying royal instructions subsequent to the proclamation and relative to what is now Canada were directed to James Murray, governor of Quebec, on 7 December 1763. These instructions, stated in the preamble to be under the signet and sign manual, said: "Article 61 ... You are upon no account to molest or disturb them [the Indians] in the Possession of such Parts of the said Province as they at present occupy or possess."51 That 1763 royal instruction to Governor Murray was subsequently repeated in the royal instructions to his successor, Guy Carleton, as captain general and governor in chief in and over the province of Quebec, in 1768, once again as a separate supplemental instruction rather than as a constitutive term expressly set out in the commission itself.52 At this juncture it may be recalled that a portion of North America was unorganized for the purposes of colonial civil government, being under military jurisdiction only. Since the instructions to the civil governors, such as the ones to Murray and Carleton just reviewed, 50

Royal commission of Governor Seymour, supra note 7. By way of contrast, the earlier royal commission of 2 September 1858, constituting Governor James Douglas in office, had more typically been silent on the subject of Indians: "Order in Council Annexing Letters Patent Granting a Royal Commission to James Douglas as Governor of British Columbia," Entry Books Series n, Colonial Office Records (381/18 PRO London) Public Archives Canada microform reel 890. An Act to Provide for the Government of British Columbia, 21 & 22 Viet., c. 99 (1858), similarly made no reference to an express restriction on the governor's power when by section 2 it gave the governor power to enact laws for "the Peace, Order, and good Government of Her Majesty's subjects and others therein." s 'Shortt and Doughty, Documents Relating to the Constitutional History of Canada, I. 52 Public Archives Canada, Mo40 B7, 90-102.

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would not have applied outside the territorial boundaries of their respective civil colonial provinces, similar royal instructions were issued to the head of the military establishment. For example, pursuant to the king's order Lord Hillsborough communicated to the commander in chief a report of the lords of trade on the state of Indian affairs. Both this official report and Lord Hillsborough's communication of it clothed with the king's endorsement under the signet and signmanual occurred in 1768.53 The report in virtue of that endorsement acquired the force and effect of a supplemental royal instruction. It said: To maintain a good Correspondence with the Indians is undoubtedly an Object of great importance ... The giving all possible redress to the complaints of the Indians in respect to Encroachments on their Lands, and a steady and uniform Attention to a faithful execution of whatever shall be agreed upon for that salutory purpose, is a Consideration of very great Importance. It is a Service of a general nature, in which Your Majesty's Interest, as Lord of the Soil of all ungranted Lands which the Indians may be inclined to give up, is deeply and immediately concerned, and with which the general Security of your Majesty's Possessions there is in some measure connected.54

The tenor of that report, like the preceding instructions to the civil governors, viewed the natives as a force to be cultivated and pacified, in a context that respected their rights. The description of the "Lands" as "their" was significant. It recognized an aboriginal right in those lands. Furthermore, the description of the king as "Lord of the Soil" was subject to a limitation: it applied only to such lands as "the Indians may be inclined to give up." Hence the instruction to the military establishment was that the natives retained a dominion over such lands as they had not yet given up to the crown. In 1775 the Imperial Plan for the Future Management of Indian Affairs of 1764, a plan that had provided a blueprint to be applied "throughout all North America ... so as to set aside all local interfering of particular Provinces,"55 was incorporated by reference into the royal instructions to Guy Carleton as captain general and governor in chief of Quebec in America. The 1775 instructions said: "Article 32 ... These and a variety of other regulations, incident to the nature and purpose of the Peltry Trade in the interior Country, are fully stated in a Plan 53

Alvord and Carter, Trade and Politics, in: 183-204, 245-7. Ibid., at 186 (emphasis added). 55 O'Callaghan et al., Documents Relative to the Colonial History of New York, 7:634.

54

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proposed by Our Commissioners for Trade and Plantations in 1764, a Copy of which is hereunto annexed and which will service as a Guide in a variety of cases, in which it may be necessary to make provision by Law for that important branch of the American Commerce."56 Like the instructions themselves however, the plan of 1764 served only as a guide. It provided a basis from which to operate whenever "it may be necessary to make provision by Law" for some purpose. It did not serve as law in its own right. In the royal instructions to Governor Haldimand, and to his successor Carleton (who had been reappointed), of 1778 and 1786 respectively, the plan of 1764 was again incorporated by reference as a guide.57 A similar military reminder occurred in 1783 when the commander in chief of the crown's forces in North America, Frederick Haldimand, instructed Sir William Johnson, superintendent of Indian affairs, that "as these people consider Themselves, and in fact are, free and independent, unacquainted with Control and Subordination, their Passion and Conduct are alone to be governed by Persuasion and Address."58 This instruction was the equivalent of a royal instruction accompanying but not included in a royal commission. Johnson's royal commission (bearing the great seal of Great Britain) constituting him in office had said, "you are to observe and follow such Orders and Directions from time to time, as you shall receive from Our Commander in Chief of Our Forces in North America now and for the time being, or any other Your Superior Officer according to the Rules and Discipline of War."59 The subsequent instruction, from Haldimand to Johnson in 1783, by recognizing that the Indians were "free and independent" therefore reiterated but added nothing to the binding effect of the Royal Proclamation of 1763. The proclamation had already publicly enacted that colonial governments were constitutionally bound not to molest or disturb the Indian nations or tribes. The point here is that as a general proclamation it was no less binding upon the military establishment than upon the civil governments in the colonies, and reminders were occasionally issued to both the military and civilian officials. 56

Given at the Court of St James, 3 January 1775, Public Archives Canada, Mc40 B?, 116-60 (emphasis added). "Public Archives Canada, Mc40 B?, 213-15, 231-79. 58 Public Archives Canada, Moll reel a-36 Colonial Office Records (42/44 PRO London), folios 95-7 (emphasis added). M Sullivan et al., The Papers of Sir William Johnson, n: 434-5.

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One can, nevertheless, also argue that such civil and military royal instructions were more than just non-binding reminders. They were also evidence of how the previously established imperial law constituting colonial civil and military powers was understood by contemporaries. In that connection a public representation of the crown's position made by His Excellency Guy Carleton Lord Dorchester, Governor of Upper and Lower Canada and Commander in Chief of His Majesty's Forces in North America, is particularly illuminating. He told the chiefs and warriors of the Confederated Indian Nations in 1791: Brothers: You have told me, there were people who say that the King your father when he made peace with the United States gave away your lands to them. I cannot think the government of the United States would hold that language, it must come from ill-informed individuals. You will know, that no man can give what is not his own ... The King's rights with respect to your territory were against the nations of Europe; these he resigned to the States. But the King never had any rights against you but to such parts of the country as had been fairly ceded by yourselves with your own free consent by public convention and sale. How then can it be said that he gave away your lands? So careful was the King of your interests, so fully sensible of your rights, that he would not suffer even his own people to buy your lands, without being sure of your free consent, and of ample justice being done you ... The King has not forgot your friendship, he never forgets his friends. You desire the King's protection, you desire his power and influence may be exerted to procure your peace and to secure your rights.60

This speech represented the considered opinion of the highest ranking civil and military official in British North America as to his understanding of the constitutional law confirmed by the Royal Proclamation of 1763. Mr Justice Strong of the Supreme Court of Canada in the leading St Catherine's Milling1 case made essentially the same point a century later. He confirmed that the natives had strictly legal rights, that those rights were sufficient to prevent colonial governments from dealing with yet unceded Indian territory, and most important, that such principles had prevailed as a matter of law rather than mere policy or convention, "at least from the year 1756, when Sir William Johnston [sic] was appointed by the Imperial Government superintendent of Indian affairs

60 61

Archives Ontario, Simcoe Papers, Letterbook 17-1791. St Catherine's Milling & Lumber Co. v. n (1887), 13 SCR 577.

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in North America, being as such responsible directly to the crown through one of the Secretaries of State, or the Lords of Trade and Plantation, and thus superseding the Provincial Governments, down to the year 1867, when the confederation act constituting the Dominion of Canada was passed."62 The verb "superseding" was crucial, for by it Strong j. confirmed the constitutional incapacity of colonial governments to "molest or disturb" the Indian nations or tribes. The colonial governments did not have jurisdiction under the prerogative legislation constituting their powers to negate the aboriginal right of self-government upon yet unceded territory, since to do so, manifestly, would have been to molest or disturb those nations or tribes upon those lands. As to why it made sense for the prerogative legislation to have expressed that intent, a report of Sir William Johnson, superintendent of Indian affairs in North America, is instructive. He advised the Board of Trade on 30 August 1764 that they [the Indians] apprehend that we design to enslave them ... if we conquer their prejudices by our generosity they will lay aside their Jealousy's, & we may rest in security. This is much cheaper than any other plan, and more certain of success. Our extensive Frontier renders it necessary if we will provide for their security ... [in the last campaign] they saw themselves able to effect what was looked upon by many of our prejudiced Politicians here as utterly impossible ... The Indians all know we cannot be a Match for them in the midst of an extensive woody Country ... from whence I infer that if we are determined to possess Our Posts, Trade & ca securely, it cannot be done for a Century by any other means than that of purchasing the favour of the numerous Indian inhabitants.63 The Indians' military alliance was important because of the need to maintain British influence in North America against the French crown. Colonel Bouget writing to Major General Thomas Gage, the commander of His Majesty's British Forces in North America, on 30 November 1764, thus observed: Those [Indian] Nations being extremely indisposed against us owing to the 62

Ibid., at 608 (emphasis added). Approved, Calderv. AC for BC, supra note 8, at 376-7 per Hall, j. ^Aivord, The Critical Period 1763-1765, 10: 307. See also "royal instructions to Jeffrey Amherst, Major-General of His Majesty's Forces, and General and Commander in Chief of the Forces in North America, dated at the Court of St James, 17th December, 1760," instructing him relative to "engaging the Indian Tribes to our Alliance and Interest" (Public Archives Canada, reel A-617, BL Add. Mas. 21697).

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perfidious Insinuations of the French and the contemptible Right in which they [the French] represent us. They [the Indians] would neither believe our offices sincere, nor think us able to inforce them ... The dread of English power is in my opinion the only motive capable of Making a Solid Impression upon their minds and they must be convinced that it is not out of necessity, but out of regard for them that we offer them our alliance.64

Even after the fall of New France and with the diminishing French influence the Indians continued to figure as a prominent force to be reckoned with by the king's advisers. For example, a century later on 16 July 1864 the colonial secretary wrote to Governor Seymour of British Columbia: "I should deprecate nothing so much as the breaking out of a War which you justly say would be very costly, and which might lead to prolonged feelings of animosity between the two races that could be productive of nothing but evil and danger."65 On 1 August this secretary of state added: "I rejoice to see that you are fully alive to the consequences which an Indian War would entail upon the colony and I trust that you will be especially careful not to take any measures which might convert an isolated outrage perpetuated by a band of murderers into a tribal war."66 Thus advice that the Colonial Office was both getting and giving over the course of two centuries, from the 1670 royal instructions to confederation, demonstrated the existence of an underlying imperial perspective that was consistent. The several colonial governments in British North America were well understood to be inappropriate vehicles for the formulation of law regarding Indians. The natives' favour was considered essential, and was to be fostered both by an appeal to their self-interest as well as by the appearance of imperial prowess and impartiality. This placed the imperial government in the position of having to be seen to maintain an even hand between the conflicting interests of the Indian nations and the colonial governments. Constitutional law provided the means. The prerogative legislation affirmed both the aboriginal right of self-government and the corresponding constitutional incapacity of colonial governments to

"Alvord, supra, at 336. The real-politik of the English-French-Indian triangle is portrayed by Eccles in "Sovereignty Association, 1500-1783," and 'The Fur Trade and Eighteenth-Century Imperialism." Both articles are reproduced widi some revisions in Eccles, Essays on New France, 144ff. 65 Secretary of State E. Cardwell to Governor Seymour, dispatch no. 23, PRO, co 389/2, microfilm, Public Archives Canada, Entry Books of correspondence 18611867, reel 890, at 244. ^Ibid., dispatch no. 30, at 250.

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interfere with that right. The prerogative legislation did this in two ways: negatively, by not explicitly investing colonial governments with the constitutional capacity to govern natives in relation to yet unceded territory; and positively, by explicitly recognizing the aboriginal right not to be molested or disturbed upon such territory. The first point, non-investiture, goes to the constitutional capacity issue. The second point, recognition of the aboriginal right, goes to the repugnancy issue. The discussion of the Royal Proclamation of 1763 would not be complete without a comment on its use of the word "Indians," in, for example, its enactment that "the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds." "Indians" there meant everyone identified as being racially indigenous, as distinct from being "European." The term was not restrictively defined in the eighteenth century. One must therefore guard against the impulse to equate the restrictive definition of "Indian" employed in twentieth century Indian Acts with the broader eighteenth century usage. The modern term most closely approximating "Indians," in the all-encompassing sense used in the proclamation, would be "aboriginal peoples" as used in section 35 of the Constitution Act, 1982. That is a broader category than "Indians" in the Indian Act sense. For this reason, this book has been styled as an enquiry into the aboriginal right of self-government rather than the Indian right of self-government. The stress is upon the constitutional dimension and upon the constitutionally relevant class of persons to whom the right relates.

C H A P T E R THREE

Continuity

The prerogative legislation confirming the aboriginal right of selfgovernment has never been repealed. Nor have the constitutional common law precedents ever been overruled. For these reasons alone the right still exists. These reasons do not, however, stand alone. Statutes of the imperial Parliament have reiterated the imperial law previously established by the prerogative legislation. The first section of this chapter, entitled "Non-repeal of the Prerogative Legislation," demonstrates the absence of any legislative discontinuity. As Lord Denning MR once held, when construing the Constitution Act, 1867: Save for that reference in s. 91(24), the 1867 Act was silent on Indian affairs. Nothing was said about the title to property in the "lands reserved for the Indians," not to the revenues therefrom, nor to the rights and obligations of the Crown or the Indians thenceforward in regard thereto. But I have no doubt that all concerned regarded the royal proclamation of 1763 as still of binding force. It was an unwritten provision which went without saying. It was binding on the legislature of the Dominion and the Provinces just as if there had been included in the statute a sentence: "The aboriginal peoples of Canada shall continue to have all their rights and freedoms as recognized by the royal proclamation of 1763."1

Evidence of continuity exists not only negatively, as recognized by Lord Denning, but positively as well. Statutes of the imperial Parliament, other than the Constitution Act, 1867, were enacted that recognized and affirmed the continued existence of the royal proclamation's concept 1

R. v. Secretary of State for Foreign & Commonwealth Affairs, [1982] 2 All ER 118 (CA), 125.

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of the Indian territory, and thereby ratified the adjunct aboriginal right of self-government. Most important, these statutes also constituted the powers of the federal and provincial governments, such that it is integral to those powers that they were inceptively counterbalanced by the aboriginal right implicitly affirmed in the same legislative instruments. The duty of one whose task it is to construe legislative intent becomes more onerous as the passage of time erases the ancient context and substitutes a modern set of natural assumptions. This must be stressed: the aboriginal right of self-government was confirmed in the eighteenth century, and the normal legal presumption of continuity thus applies. The process of construction need not begin, therefore, with a quest for fresh evidence in each generation of the re-constitution of the right. With this in mind, the approach in this chapter is to adopt as the relevant starting point an eighteenth